528 N.E.2d 1277 | Ohio Ct. App. | 1987
Lead Opinion
This cause came on to be heard upon an appeal from the Court of Common Pleas of Clinton County.
On May 3, 1985, defendant-appellant, Jeffrey Irvin, was indicted on a single-count indictment for the offense of aggravated burglary. He entered a plea of guilty to the lesser included offense of burglary, a violation of R.C.
On August 18, 1986, a hearing was held to determine, interalia, the issue of restitution. At this hearing, the state presented the testimony of Juanita B. Harvey, the wife of Norman Harvey. Harvey testified that her Clarksville, Ohio, residence was "robbed" during the afternoon and evening hours of March 28, 1985, and was "fired" the next morning. As a result of these two distinct incidents, Harvey estimated that her "total contents loss, came very close to $82,000." Of this sum, according to Harvey, the loss attributable to the "robbery" was $27,000.
By judgment entry dated September 29, 1986, the trial court ruled, inter alia, that:
"* * * [I]t is determined, from all of the evidence presented that Defendant will make restitution in the amount of Twenty-Seven Thousand Dollars ($27,000) which represents his undivided one-third interest of [the] victim's loss of Eighty-One Thousand Dollars." (From the record, it appears that three individuals were involved in the March 28, 1985 burglary.)
The order of restitution forms the basis of the present appeal. In support of his sole assignment of error, appellant argues that "* * * a trial court [cannot] order a defendant to pay restitution for an offense for which he was neither indicted nor convicted[.]" We agree.
In pertinent part, R.C.
"(E) * * * The court * * * may require a person who is convicted of or pleads guilty to a felony to make restitution for all or part of the property damage that is caused by his offense and for all or part of the value of the property that is the subject of any theft offense, as defined in division (K) of section
Under R.C.
In the present action, appellant was not convicted of arson. Accordingly, under R.C.
The assignment of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, reversed, and this cause is remanded for further proceedings according to law, to wit: resentencing of appellant as to restitution.
Judgment reversed and cause remanded for resentencing as torestitution.
KOEHLER and YOUNG, JJ., concur.
HENDRICKSON, P.J., dissents.
"(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section
"(B) Whoever violates this section is guilty of burglary, an aggravated felony of the second degree."
Dissenting Opinion
Although the majority opinion contains a correct statement of the law (i.e., that restitution can be ordered only for the acts which constitute the crime for which appellant was sentenced), I would affirm. After all, we have an unusual situation in that one-third of the total damage, including the arson for which appellant was not charged, equals the amount of restitution due for the burglary to which appellant entered a plea of guilty. Since one convicted of a theft offense may be required to make restitution for all, or any part, of the damage resulting therefrom, I would modify the judgment of the trial court to provide that appellant is ordered to make restitution for the entire loss caused by the burglary unless his partners in the crime each contribute their share. After all, the burglary was a conspiracy, or a joint venture, and as between the trio of burglars and the victim, each burglar should be responsible for the total loss less any contributions from the other burglars. *15
