STATE v. DYER, 796 N.W.2d 457 (Iowa App. 2004)

STATE OF IOWA, Plaintiff-Appellee, v. CHARLES LEE DYER, Defendant-Appellant.

No. 3-975 / 03-0621.Court of Appeals of Iowa.
Filed January 14, 2004.

Appeal from the Iowa District Court for Wapello County, James Q. Blomgren, Annette J. Scieszinski, and Richard J. Vogel, Judges.

Defendant appeals from the judgment entered following his plea of guilty to one count of third-degree sexual abuse.REVERSED AND REMANDED FOR FURTHERPROCEEDINGS.

Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Mark Tremmel, County Attorney, and Sarah Pettinger, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.

EISENHAUER, J.

Charles Dyer appeals from the judgment entered following his plea of guilty to one count of third-degree sexual abuse in violation of Iowa Code sections 709.1 and 709.4(2)(c)(4) (2001). He contends the district court erred in determining the amount of restitution he owed without considering any offset for insurance. We review his claim for errors at law. State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001). When reviewing the restitution order, we determine whether the court’s findings lack substantial evidentiary support, or whether the court has not properly applied the law Id.

Iowa Code section 910.3 (2003) states in pertinent part:

The county attorney shall prepare a statement of pecuniary damages to victims of the defendant and, if applicable, any award by the crime victim compensation program and expenses incurred by public agencies pursuant to section 321J.2, subsection 9, paragraph “b”, and shall provide the statement to the presentence investigator or submit the statement to the court at the time of sentencing.

Pecuniary damages are defined as “all damages to the extent not paid by an insurer, which a victim could recover against the offender in a civil action arising out of the same facts or event. . . .” Iowa Code § 910.1(3). It is the State’s obligation to determine insurance paid to the victim. State v. Wagner, 484 N.W.2d 212, 217 (Iowa Ct. App. 1992).

The prosecuting attorney filed a statement of pecuniary damages that itemized the victim’s expenses: $145.00 for sexually transmitted disease testing; $37.00 for a medical bill; $6.72 and $10.00 for medication; $119.00 for seven hours of lost wages; $53.46 for mileage; and $2,640 for behavioral health counseling. At the restitution hearing, the prosecutor noted the victim’s father’s insurance had a $500 deductible and stated the deductible was figured into the cost when the pecuniary statement was filed. The court did not require additional documentation regarding the insurance, and awarded $3,011.18 in restitution.

The testimony of the victim’s therapist suggests her behavioral health counseling may be covered by the father’s insurance. If so, the $500 deductible should be applied to the $2,640 behavioral health counseling charge. Because there is uncertainty as to whether insurance covers this cost and it is unclear what the prosecuting attorney meant when stating the deductible was figured into the cost, we conclude the district court erred in not further inquiring into the matter. Accordingly, we remand to the district court for a hearing on the matter of what costs are covered by insurance.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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