Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Last Updated 12/12/2014
R.C. 2929.18 -- Financial sanctions;
R.C. 2929.21(E) -- Penalties for misdemeanors.
State v. Ratliff, 194 Ohio App. 3d
2011-Ohio-2313 – Defendant sentenced for theft in an amount between $25,000
and $100,000 was ordered to pay $121,000 in restitution. Amount was contested,
so a hearing was required, and in any event, restitution was limited to
State v. Foster, 185 Ohio App. 3d 137,
2009-Ohio-6213, ¶47-51 – When the defendant disputes the amount of
restitution the court must conduct a hearing. The amount of restitution must be
established within a reasonable certainty, and based on competent, credible
evidence. Complex, many count mortgage fraud case.
State v. Parker,
183 Ohio App. 3d 431,
2009-Ohio-3667 – Before making a restitution order a court must consider the
defendant‘s present and future ability to pay. No hearing is required and the
court cites no specific standards for determining ability to pay, but notes that
the defendant was sentenced without the benefit of a presentence investigation
and that review of past criminal record is not indicative of ability to pay.
During the trial the court heard the defendant was unemployed, addicted to
drugs, and in search of $500 required to enter a rehabilitation program.
State v. Rohrbaugh,
191 Ohio App. 3d 117,
2010-Ohio-6375 – On remand from the Ohio Supreme Court. Plea
was to RSP. Money involved had been returned to the victim.
Error to order additional restitution for damage done through a
breaking and entering offense he had not been convicted of.
State v. Danison, 105 Ohio St. 3d 127,
2005-Ohio-781 -- Syllabus: "An order of restitution imposed by the sentencing
court on an offender for a felony is part of the sentence and, as such, is a
final appealable order." Court of appeals had held it was not appealable until
after a hearing on a motion to enforce.
Gears (1999), 135 Ohio App. 3d 297 -- A court is without
authority to order in-kind restitution. Burglary victim lost
jewelry and jewelry box which had sentimental value. Defendant
was ordered to turn over to her a necklace given him by an
Aliane, Franklin App. Nos. 02AP-948 and 986,
2003-Ohio- 2022 -- Sentence reflected by judgment entry must
be as pronounced in court. Error to add a restitution order.
Bell, Franklin App. No. 02AP-1282,
2004-Ohio-5256 -- Double jeopardy violation found where
judgment entry was filed and court later added a restitution
order. At sentencing the judge indicated the victim would be
heard from, but the entry did not reflect the issue of
restitution remained open.
Ramirez, 153 Ohio App. 3d 477,
2003-Ohio-4107 -- A restitution order must be appealed at
the time it is put on. Defendant waited until he was sanctioned
for community control violations. Claimed error in failure to
determine ability to pay was barred by res judicata.
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State v. Waiters, 191
Ohio App. 3d 720,
2010-Ohio-5764 – Defendant pleaded guilty to theft based on
his earnings during years he occupied public housing. The state
asked for $14,674 in restitution, and this amount was set forth
in the written plea agreement form. Defendant retains the right
to appeal the restitution order. Though jointly recommended
sentences are generally not appealable, this applies to
sentences authorized by law, and an unsubstantiated restitution
order is not authorized by law. Court questions how amount was
reached and whether the public housing agency, or HUD, which
paid a subsidy, is the party suffering the actual economic loss.
Cicerchi, 182 Ohio App. 3d 753,
2009-Ohio-2249, ¶29-38 – In a foreclosure rescue fraud case
the defendant was acquitted of theft but convicted of
telecommunications fraud. (1) Restitution could properly be
ordered on the amount of the homeowner‘s loss. See dissent. (2)
Entry should have made it clear that while the defendant was
liable for the entire loss, the victim was not entitled to
collect the same amount from the codefendant. (3) Hearing should
have been conducted to calculate amounts the victim may have
Haney, 180 Ohio App. 3d 554,
2009-Ohio-149, ¶28-30 – While restitution to third parties
was permitted prior to June 1, 2004, it is forbidden by the
present version of
Didion, 173 Ohio App. 3d 130,
2007-Ohio-4494 – Under the version of statute controlling at
the time of the offense the court was without authority to order
restitution to third parties. Nor was it proper to order
restitution for estimated value of property in a burned house
without waiting for demolition which would finally allow owners
access to contents. Guess as to valuation of damage to a truck
was too speculative.
State v. Moss, 186
Ohio App. 3d 787,
2010-Ohio-1135 – Error to order restitution to the victim’s
insurer. As to the remaining amount of the loss, assessment of
the offender’s ability to pay is satisfied by consideration of a
presentence investigation providing the pertinent information.
Bowman, 181 Ohio App. 3d 407,
2009-Ohio-1281 – Used car dealer pled to numerous charges
related to the operation of his business centering on failure to
repay floor-plan lenders who in turn did not release title to
sold vehicles. Restitution orders for customers were adequately
calculated, but the order for the benefit of a floor-plan lender
was not. Lender had already obtained a civil judgment which
might have encompassed some of the losses included in the
restitution order. Ability to pay issue brushed aside.
State v. Jones, Lucas App. No.
2003-Ohio-1865 -- A court must determine the specific amount of
restitution to be paid. A general order that there be restitution is
insufficient. As a matter of due process the court must ascertain that the
amount of restitution bears a reasonable relation to the amount of loss
suffered. However, the court need not determine the precise amount to be paid in
court costs. Also see State v. Day, Lucas App. No. L-02-1013,
State v. Streeter, 162 Ohio App. 3d 748,
Purnell, 171 Ohio App. 3d 446,
2006-Ohio-6160 -- Restitution must be determined at the time
of sentencing. There is no statutory authority for increasing
the amount ordered at a later date, even if the court has
claimed to reserve the right to modify the order upon receipt of
additional information from the probation department. Opinion
suggests the amount initially ordered may not have been properly
substantiated. Unauthenticated medical and hospital bills do not
demonstrate the actual economic loss. A different amount may
have been paid or insurance may have covered the care provided.
State v. Rivera, Cuyahoga App. No.
2004-Ohio-6648 -- Restitution in the amount of the value of a car is
improper when the indictment charged F-4 RSP of an engine. Since the upper limit
of F-4 RSP is $5,000, the order was improper.
State v. Johnson, Washington App. No.
2004-Ohio-2236 -- Failure to object to amount ordered as restitution
limits appellate review to plain error. Also see State v. Johnson, 164
Ohio App. 3d 792,
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State v. Hunter, 2nd
Dist. Montgomery No. 25521,
Trial court erred in ordering
the defendant to pay restitution to the Dayton Fire Department
as part of his sentence for an aggravated arson conviction. The
Dayton Fire Department was not a victim under
2929.18(A)(1), and Trial court failed to comply with the
2929.71, if that statute even authorizes Trial court to
order restitution to the Dayton Fire Department (The Sixth
District did not clarify if it does.).
State v. Johnson, 10th Dist. Franklin No. 13AP-336,
In a receiving stolen property case, trial court erred by
ordering defendant to pay restitution to the victim’s insurance
State v. Colon, 185
Ohio App. 3d 671,
2010-Ohio-492 – Defendant stole property from the people he
was staying with and set a fire that did minor damage. Insurance
company was neither a victim nor an agency which the court could
designate to receive restitution payments. Restitution for the
admitted theft was improper as the defendant as not charged with
State v. Riley, 184 Ohio App. 3d 211,
2009-Ohio-3227 – Victim of a home invasion suffered a heart
attack thirteen days after the incident. Order of restitution
for his medical expenses was proper as there was evidence
linking the heart attack to the beating he suffered during the
invasion. Reversed, however, since the restitution order was not
made in open court and the court failed to address the
defendant’s ability to pay.
v. Cardwell, 176 Ohio App. 3d 673,
2008-Ohio-1725 – Defendant tail ended a car waiting to make
a left turn. She initially pulled over but then drove off,
leading to convictions for ACDA and hit-skip. As a condition of
probation on the hit-skip she was ordered to pay restitution in
the amount of the damage to the other vehicle. Pursuant to
2929.28(A) restitution could not be ordered on the minor
misdemeanor that resulted in the damage. Nor could it be ordered
with respect to the hit-skip since the damage had already been
done, and thus could not have been a direct and proximate result
of the hit-skip. Cases where there were injuries are
State v. Berlinger,
194 Ohio App. 3d 135,
2011-Ohio-2223 -- Court ordered defendant pay $13,148 to
felony victim even though that loss had already been covered by
insurance. 2004 amendment of the restitution statute limited
payment of restitution to victims, survivors, and designated
agencies. This meant payment to insurers could no longer be
ordered, but in the court’s view in this case the victim still
had an economic loss, even though it had been covered by
insurance. Order affirmed.
Portentoso, 173 Ohio App. 3d 297,
2007-Ohio-5490 – Victim of assault and menacing charges was
the defendant‘s wife, who by the time sentence was passed had
obtained a divorce, remarried, and moved to Michigan. As
restitution the court awarded (1) rent payments (in part) for
the apartment the victim shared with her new husband, (2) cost
of three trips to Michigan to make the move, (3) storage unit
expenses, (4) wages lost from the job she quit when she made the
move, and (5) fees paid her divorce attorney supposedly for his
assistance in relation to the criminal charges. Reversed. These
expenses were not necessary and were voluntarily accrued.
Followed: State v. Rigsbee, 174 Ohio
App. 3d 12,
2007-Ohio-6267, ¶28-37 – Company spent $60,000 to
investigate embezzlement by the defendant. This was a part of
the company‘s economic loss and was properly included in
restitution. Found that the trial court properly considered the
defendant‘s ability to pay in ordering payments on almost
$2,000,000 in restitution at $1,000 per month beginning two
months after the defendant completes a fifteen year prison term.
Toler, 174 Ohio App. 3d 335,
2007-Ohio-6967 -- Defendant skipped out before sentencing
for domestic violence. Court ordered restitution payable to the
Sheriff for the cost of extraditing him from Iowa. Reversed.
With limited exceptions, government entities are not victims.
State argued error was harmless because costs could have been
assessed as costs of prosecution, but this is rejected as there
was no indication the procedure specified in
2949.14 was followed, and in any event, such reimbursement
is payable to the clerk, not the Sheriff.
Wolf, 176 Ohio App. 3d 165,
2008-Ohio-1483 – Defendant poured gasoline throughout his
trailer, set fire to it, and was injured when he opened a garage
door allowing oxygen to reach vapors causing an explosion.
Restitution order in favor of responding fire departments was
improper as they were not "victims" of the defendant‘s arson
O‘Bryan, 181 Ohio App. 3d 247,
2009-Ohio-753 – Within
2913.11 Division (A) is a definitional section and (B) sets
forth the offense. Aggregate value language in (E) apples to all
offenses. Reference in (E) to (A) is a mistake. Defendant was
properly convicted of a felony based on aggregate value of
checks written. Restitution was properly ordered for checks
passed in other counties as a part of the same course of
conduct. Venue is proper.
State v. Christy, Wyandot App. No.
2004-Ohio-6963 -- Plain error to order restitution for funeral costs
based on an unsubstantiated figure provided by a victim advocate. Plain error to
order restitution to towing company and the Sheriff's Office as they were not
"victims." Nor were such expenses incident to a implementing a financial
sanction or taxable as court costs.
State v. Samuels, Washington App. No.
2003-Ohio-6106 -- A court may not order restitution in the amount of the
money provided an informant to complete an undercover drug buy. Restitution is
limited to "victims," and repayment was not a part of the plea bargain.
State v. Hooks (2000), 135 Ohio App. 3d
746 -- (1) Restitution is limited to crimes for which the defendant was
convicted. Court was without authority to order restitution covering the costs
of cosmetology license suspension hearings for individuals other than those
involved in the seven counts of tampering with records defendant pleaded guilty
to. (2) Since raising scores on cosmetology exams did not pose the threat of
personal injury or death, restitution could not be ordered in any event.
State v. Schmoll, 163 Ohio App. 3d 677,
2005-Ohio-5379 -- ¶15-17: A court may not order restitution on counts dismissed
as part of a plea bargain. ¶66-71: A court may order restitution payments begin
while the defendant is still in prison. His veteran's benefits may have been
exempt from attachment, but attachment may not be challenged until it has been
State v. Heap, Hamilton App. No.
2004-Ohio-5850 -- Restitution is limited to loss caused by a crime on
which there was a conviction. Aggravated rioting defendant was among a group of
drunken students who flipped over two cars. Damage to one could be tied to
predicate arson charge, and restitution order was proper. At ¶40: But "It
strikes us that Heap's actions in helping to flip over the Neon should have been
the basis of a separate lesser charge such as simple rioting or criminal
damaging, but it cannot be said to be a part of the crime, aggravated rioting by
virtue of an attempted arson, upon which the trial court properly convicted
him." Also see State v. Littlefield, Washington App. No. 02CA19,
2003-Ohio-863 where RSP defendant could not be ordered to make restitution for
stripped steering column.
State v. Hafer (2001), 144 Ohio App. 3d
345 -- Defendant was indicted for burglary, vandalism and receiving stolen
property. Upon pleading guilty to RSP restitution was limited to the value of
the unrecovered stolen property. The presumption of innocence confines
punishment to those charges for which the defendant is convicted. Also see State v. Williams, Logan App. No. 8-03-25,
2004-Ohio-2801 (improper order of
restitution for loss on acquitted count.)
State v. Ward (1999), 135 Ohio App. 3d 76
-- Defendant was convicted of theft based on continued receipt of welfare
benefits following personal injury settlement, and sentenced to prison. Since
the theft of benefits posed no threat of personal injury or death, court was
without authority to order restitution.
State v. Cooper, Lake App. No. 2002-L-091,
R.C. 2929.18(A)(1) forbids orders of restitution to the
defendant's own insurance carrier, not the victim's carrier. Court must consider
ability to pay. Representation by the prosecutor as to the amount of loss is not
enough. Nor is the amount paid by the insurance carrier determinative.
State v. Kreischer, 109 Ohio St. 3d
2006-Ohio-2706 -- For cases arising before the June 1, 2004 amendment of
R.C. 2929.18, a court may order restitution to the victim's insurance carrier.
The present version of the statute does not provide for restitution to third
State v. Martin (2000), 140 Ohio App.
3d 326 -- Court erred by ordering payment of restitution directly to victim for
loss covered by his insurance carrier, but court could order restitution to
carrier. Also see State v. Burgin, Hamilton App. No. C-020755,
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State v. Webb, 173 Ohio App. 3d 547,
2007-Ohio-5670, ¶26-35 – Defendant scammed homeowners facing foreclosure.
Approximation of the amounts received from the victims, without documentation,
State v. Sommer, 154 Ohio App. 3d 421,
2003-Ohio-5022 -- Police chief accidently shot a hole in the windshield of his
cruiser. To cover up he faked a traffic stop, claiming the suspect shot the
windshield. He shot himself as well. Restitution order in the amount of
sheriff's overtime expenses relating to this incident was not sufficiently
supported by the prosecutor's assertion as to the amount spent.
State v. Gray, Belmont App. No. 02 BA 26,
2003-Ohio-805 -- The amount of restitution must be established with a reasonable
degree of certainty. Amount of civil judgment setoff not adequately documented.
Proceeds from sale of seized property may be a resource though those assets were
released by the civil plaintiffs. Source of funds is not limited by a civil
Castaneda, 168 Ohio App. 3d 686,
2006-Ohio-5078 -- Burglar was ordered to pay $5,000 in
restitution for damage to a $3,5000 mahogany door that had not
yet been repaired or made the subject of an insurance claim. The
court stated it reserved jurisdiction to conduct a future
hearing on damages. Reversed. There was no competent credible
evidence as to the amount of damages. Nor may the court order
restitution for amounts covered by insurance since that would
constitute an economic windfall.
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State v. Bender, Champaign App. No.
2004 CA 11,
2005-Ohio-919 -- Trial judge faulted for blowing off the defendant's
efforts to ascertain the amount of restitution ordered, and for failure to
follow due process standards in revoking probation upon failure to pay.
State v. Williams, Summit App. No.
2004-Ohio-6545 -- While there was an order to pay restitution at the rate
of at least $500 per month during community control, no order as to the total
amount was put on until after the term had expired. At that point the court was
without jurisdiction to put on such an order.
State v. Pettis (1999), 133 Ohio App. 3d
618 -- Theft and trafficking in food stamps defendant was not entitled to
expungement until restitution was completely paid. A cognovit note for the
amount due does not discharge this obligation.
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State v. Miller, 127
Ohio App. 3d 407,
2010-Ohio-5705 – Restitution was discussed at the plea
hearing before a visiting judge, but was not ordered orally or
by journal entry at the time the visiting judge passed sentence.
The prosecutor sought a hearing on restitution. Instead the
initially assigned trial court judge reviewed a transcript of
the plea hearing, concluded restitution was a part of the deal
and put on an amended judgment entry. Reversed. ¶14: “…(A) trial
court lacks the authority to reconsider its own valid final
judgment in a criminal case, with two exceptions: (1) when a
void sentence has been imposed and (2) when the judgment
contains a clerical error.” Omission of restitution is not a
“clerical error.” ¶16: “…(T)he determination of restitution
entails a substantive legal decision or judgment and is not
merely a mechanical part of a judgment.” Syllabus: “A court may
not use a nunc pro tunc entry to impose a sanction that the
court did not impose as a part of the sentence.
Bartholomew, 119 Ohio App. 3d 359,
2008-Ohio-4080 -- ¶17: "Because we must give effect to the
statute as written, we hold that
2929.18(A)(1) authorizes a trial court to order that a
criminal defendant pay restitution to the reparations fund for
payments made by the fund to a victim of crime for economic loss
caused by the offender." Mother had been reimbursed the costs of
counseling for juvenile rape victim. No discussion offered as to
whether this constitutes an economic loss. ¶15 finds amended
statutory language no longer requires restitution to third
parties mandatory but does not forbid such orders.
State v. Perkins, 190
Ohio App. 3d 328,
2010-Ohio-5058 – Recipients of restitution were designated
in court but not set forth in the judgment entry. It was proper
to correct this omission through a nunc pro tunc entry without
conducting a further hearing. Order of restitution to an
insurance company was improper. Payment ordered to the Victims
of Crime Compensation fund stands, but foot note 3 is sharply
critical of the Supreme Court’s reasoning in State v.
Bartholomew, 19 Ohio St. 3d 359,
Dolan v. United States (2010), 130 S.Ct.2533 – The
federal Restitution Act caps the time allowed for determination
of restitution to ninety days after sentencing. If the court has
made it clear restitution will be ordered this deadline may be
exceeded. Distinction is drawn between “jurisdictional”
deadlines and “claims processing rules.”
State v. Lopez, Greene App. No. 2002CA81,
2003-Ohio-679 -- Inmate sought return of property seized at the time he was
arrested. Court responded by ordering police department to turn cash over to the
probation department to be distributed to the victim in satisfaction of the
restitution order. Police were also to sell the jewelry and forward the proceeds
to the clerk to pay court costs. Reversed. Defendant was entitled to notice of
his right to request a hearing to determine whether property is exempt from
execution. Also state was without authority to enforce a restitution order that
runs in favor of the victim and not the state.
State v. Beard, 118 Ohio Misc. 2d 243,
2002-Ohio-2818 -- Restitution ordered and fully paid for the repair of damage
caused by cemetery vandalism exceeded the actual cost of repair. Remaining funds
to be refunded to defendants. Under the former version of the restitution
statute funds could not be turned over to the city for general maintenance of
State v. Diaz (2001), 145 Ohio App. 3d 551
-- For crimes committed before March 2000 restitution is limited to economic
loss arising from "criminally injurious conduct," meaning conduct posing a
substantial risk of personal injury or death. Restitution order in relation to
multiple counts of B&E reversed.
State v. Morris (2000), 145 Ohio App. 3d
817 -- Applying State v. Rush 83 Ohio St. 3d 53,
two of the syllabus, the revised version of the restitution statute effective in
1996 applies only to crimes committed after its effective date. Thus the
defendant was not able to exploit the former limitation of restitution to crimes
posing a threat of personal injury or death. See State v. Kimmle
(December 21, 1999), Franklin Co. App. No. 99AP-435, unreported.
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