STATE OF OHIO, Plaintiff-Appellee, vs. KEVIN LOWE, Defendant-Appellant.
APPEAL NO. C-130048
TRIAL NO. B-1207156
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 27, 2013
2013-Ohio-4224
SYLVIA SIEVE HENDON, Presiding Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed and Cause Remanded
Josh Thompson, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
SYLVIA SIEVE HENDON, Presiding Judge.
{¶1} Defendant-appellant Kevin Lowe entered guilty pleas to two counts of receiving stolen property and two counts of misuse of credit cards. The trial court sentenced him to three years’ community control and ordered him to “make restitution in the amount to be determined by the probation department.”
{¶2} Lowe now appeals. In a single assignment of error, he argues that the trial court erred by failing to determine the amount of restitution at the time of sentencing and by delegating the determination of the amount of restitution to the probation department. We agree.
{¶3} A trial court imposing a felony sentence may impose a financial community-control sanction as part of the sentence.
{¶4} If the court imposes restitution at sentencing, the court must determine the amount of restitution at that time.
{¶5} In 2006, this court decided Purnell. In that case, the trial court had ordered, as part of the defendant‘s felony sentence, that he “make restitution in an amount to be determined by the probation department up to $7,500.00.” Two months later, over the defendant‘s objection, the court held a hearing and entered a new restitution order in an amount over $38,000. We held as follows:
[T]he plain language of
R.C. 2929.18(A)(1) establishes that if the trial court orders restitution at sentencing, it must determine the amount of restitution at that time. There is no statutory authority for the trial court to exercise continuing jurisdiction to modify the amount of a financial sanction. * * * The trial court retains authority to impose a more restrictive sanction only if the defendant violates the conditions of his community control.
Purnell at ¶ 9. Because the trial court had no statutory authority to increase the restitution amount imposed at sentencing, we reversed the order increasing the amount and reinstated the sentence limiting the restitution amount to $7,500. Id. at ¶ 17.
{¶6} In 2007, this court decided State v. Wilson, 1st Dist. Hamilton No. C-061000, 2007-Ohio-6339. In that case, the trial court had ordered the defendant to pay restitution “in an amount to be determined by the probation department.” Id. at ¶ 16. We held that the court erred by imposing an indeterminate amount of restitution because
{¶7} In the case before us, as in Purnell and Wilson, the trial court ordered restitution as part of a felony sentence, but ordered the amount of restitution to be determined by the probation department. And, as in those cases, nothing in the trial court‘s sentencing entry indicated that the court was continuing the case for a determination of the amount of restitution.
{¶8} We distinguish this case from our 1980 decision in In re Holmes, wherein a juvenile court referee had found a child to be delinquent by reason of criminal damaging and had recommended restitution and several days of work detail. In re Holmes, 70 Ohio App.2d 75, 434 N.E.2d 747 (1st Dist. 1980). After a hearing on the child‘s objections to the referee‘s report, the juvenile court overruled the objections and stated that it would defer an evidentiary hearing on the amount of restitution. The child challenged on appeal that part of the juvenile court order that appeared to order restitution. We held that the juvenile court‘s order was not a final appealable order under
{¶9} Accordingly, we hold that the trial court erred by ordering restitution in an amount to be determined by the probation department. Therefore, we sustain the assignment of error. We remand the cause to the trial court to impose a definite amount of restitution. In all other respects, the trial court‘s judgment is affirmed.
Judgment affirmed and cause remanded.
CUNNINGHAM and FISCHER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.