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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

Last Updated 12/12/2014

RESTITUTION

Also see Probation.

 

Basics

Calculation

Reimbursable losses

Substantiation

Compliance

Other issues

 

R.C. 2929.18 -- Financial sanctions; restitution (felonies).

R.C. 2929.21(E) -- Penalties for misdemeanors.

 

Basics

State v. Ratliff, 194 Ohio App. 3d 202, 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 $100,000.

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.

State v. 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 ex-girlfriend.

State v. 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.

State v. 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.

State v. 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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Calculation

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.

State v. 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 recouped.

State v. 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 R.C. 2929.18(A)(1).

State v. 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.

State v. 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. L-01-1047, 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, 2003-Ohio-1863; State v. Streeter, 162 Ohio App. 3d 748, 2005-Ohio-4000, ¶48-51.

State v. 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. 84379, 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. 03CA11, 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, 2005-Ohio-6826.

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Reimbursable losses

State v. Hunter, 2nd Dist. Montgomery No. 25521, 2013-Ohio-3759

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 R.C. 2929.18(A)(1), and Trial court failed to comply with the mandates of R.C. 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, 2014-Ohio-4826

In a receiving stolen property case, trial court erred by ordering defendant to pay restitution to the victim’s insurance company.

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 theft.

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.

Columbus 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 R.C. 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 distinguished.

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.

State v. 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.

State v. 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.

State v. 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 conviction.

State v. O‘Bryan, 181 Ohio App. 3d 247, 2009-Ohio-753 – Within R.C. 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. 16-04-04, 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. 03CA8, 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 ordered.

State v. Heap, Hamilton App. No. C-040007, 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, 2004-Ohio-529 -- 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 391, 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 parties.

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, 2003-Ohio-4963.

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Substantiation

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, requires remand.

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 judgment.

State v. 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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Compliance

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. 21973, 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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Other issues

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.

State v. Bartholomew, 119 Ohio App. 3d 359, 2008-Ohio-4080 -- ¶17: "Because we must give effect to the statute as written, we hold that R.C. 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, 2010-Ohio-4080.

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 the cemetery.

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, 1998-Ohio-423, paragraph 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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