702 N.E.2d 134 | Ohio Ct. App. | 1997
Defendant, John M. Shenefield, appeals from a judgment of the Franklin County Court of Common Pleas overruling his motion to terminate a prior order of restitution. Defendant sets forth the following assignments of error:
"I. The trial court lacked authority to order appellant to pay $197,784.80 to Thomas Fletcher as a condition of probation.
"II. The trial court lacked subject matter jurisdiction to order appellant to pay $197,784.80 to Thomas Fletcher for his medical expenses, as these expenses are the subject of a pending civil suit in another forum.
"III. The trial court violated appellant's rights under the Double Jeopardy Clauses of the
On February 1, 1995, defendant pled guilty to two counts of aggravated vehicular assault in violation of R.C.
Thereafter, defendant began making restitution payments to Thomas Fletcher through the probation department in the sum of $200 per month. Fletcher ultimately received a total of $1,800 from defendant. On April 12, 1996, Fletcher and his wife, Chlois, filed a civil action against defendant in the Franklin County Court of Common Pleas seeking damages, including Fletcher's medical expenses allegedly incurred as a direct result of defendant's negligence.
Defendant subsequently moved the court to terminate restitution in his criminal case. In a written decision dated September 6, 1996, the trial court denied defendant's motion and set the matter for an evidentiary hearing to determine the specific amount of restitution. Following the evidentiary hearing, the trial court issued a judgment entry ordering defendant to pay restitution to Thomas Fletcher in the sum of $197,784.80. Defendant appeals to this court from the judgment of the Franklin County Court of Common Pleas.
As a preliminary matter, we note that the prosecution has moved this court to supplement the record by adding the transcript of the original plea hearing held on March 10, 1995. Defendant has opposed the motion. Inasmuch *478 as the trial court's sentencing entry of March 13, 1995 clearly sets forth defendant's sentence and the terms of defendant's probation, a review of the transcript of the plea hearing is unnecessary for the resolution of this appeal. Accordingly, the prosecution's motion is denied.
In defendant's first assignment of error, defendant contends that the trial court has no statutory authority to order restitution for the victim's medical expenses. R.C.
Ohio courts interpreting R.C.
Given the foregoing case law, it is clear that the trial court had no authority to impose a sentence that included restitution for the victim's medical expenses. The prosecution maintains, however, that the trial court ordered restitution for the victim's medical expenses not as an element of his sentence, but solely as a condition of defendant's probation. We agree.
The trial court's sentencing entry of March 13, 1995 is clear. The trial court suspended defendant's prison sentence and placed him on probation for five years with certain conditions, including the payment of restitution. The court's sentencing entry leaves no doubt that restitution is a condition of defendant's probation and not part of his criminal sentence. Thus, this case is distinguishable from Wohlgemuth, supra,
wherein the court imposed a restitution order that was to remain in effect even if the defendant's probation was subsequently revoked. Id.,
Defendant argues, alternatively, that even if the restitution order in this case be deemed a condition of probation, the trial court has no statutory authority to make such an order. We disagree.
In State v. Bush (1992),
The rule of law set forth in Bush appears to be a settled rule of law for the Twelfth Appellate District. Indeed, in State v.Bruce (1994),
Several other appellate districts have adopted the position taken by the Twelfth Appellate District, including the Fifth Appellate District in State v. Pittman (1990),
Our research has uncovered no case law from this court addressing the question whether the court may impose an order of restitution for the victim's medical expenses as a condition of probation. Consequently, this is a case of first impression in this court.
In Henry, supra, the Cuyahoga County Court of Appeals set forth the reasoning behind the rule of law permitting a sentencing court to order restitution for medical bills as part of the offender's probation:
"It is clear that the legislature contemplated a defendant making restitution in cases where injury resulted. R.C.
We agree with the Cuyahoga County Court of Appeals and the other appellate courts holding that a sentencing court may impose an order of restitution for the victim's medical expenses as a condition of probation. The legislature has not expressly proscribed such a condition or otherwise limited the discretion of the trial court in a manner that would indicate that such restitution orders are not authorized. Indeed, R.C.
"(B) The following do not control the court's discretion, but shall be considered in favor of placing an offender on probation * * *.
"* * *
"(9) The offender has made or will make restitution or reparation to the victim of his offense for the injury, damage,or loss sustained." (Emphasis added.)
R.C.
"(C) * * * In the interests of doing justice, rehabilitating the offender, and ensuring his good behavior, the court may impose additional requirements on the offender, including, butnot limited to, requiring the offender to make restitution for all or part of the property damage that is caused by his offense * * *." (Emphasis added.)
Had the General Assembly intended to prohibit sentencing courts from ordering certain types of restitution in shaping the terms of the offender's probation, it would have used language clearly evidencing that intent. Although we agree with defendant that a civil action may present the ideal forum in which to determine the existence and amount of certain damages flowing from an offender's criminal activity, we believe that the common pleas court, in shaping the terms of an offender's probation, is quite capable of determining whether a victim has incurred medical expenses as a result of the offender's criminal conduct and the amount of those medical expenses.
Of course, the trial court's discretion to order restitution as a condition of probation is not unlimited. It is clear that this court retains the power to reverse an order of restitution on appeal where that order represents an abuse of discretion. In this case, the trial court sentenced defendant to two consecutive eighteen-month terms of imprisonment, but suspended defendant's jail sentence and placed him on probation. One of the terms of probation was that defendant was to pay Fletcher's medical expenses as restitution for his crime. In an evidentiary hearing, the trial court heard the testimony of defendant's probation officer, who stated that the victim had incurred medical expenses in the sum of $197,784.80. Defendant did not dispute this amount, and the court ordered restitution accordingly. In this case, we perceive no abuse of discretion. Defendant's first assignment of error is overruled. *481
In defendant's second assignment of error, defendant argues that the subsequent filing of the civil suit against defendant by the Fletchers divested the criminal court of jurisdiction to order restitution for Fletcher's medical expenses. Defendant, however, has cited no authority in support of this argument.
Once the jurisdiction of the common pleas court has been properly invoked by a valid indictment, such jurisdiction is lost only by a proper judicial termination of the case. Click v. Eckle
(1962),
In defendant's third assignment of error, defendant argues that the trial court's judgment entry setting forth the specific amount of restitution violated his right against multiple punishments for the same offense. We disagree.
At defendant's initial sentencing hearing, defendant was sentenced, as follows:
"The Court has considered the criteria for probation pursuant to section
Later, in connection with defendant's motion to terminate restitution, the trial court issued a second judgment entry "clarifying" the terms of probation. The court explained the need to conduct an evidentiary hearing on defendant's motion as follows: *482
"The other oversight on the court's part was it really never set an amount. It left it up to the probation officer to make a determination as to the amount of the restitution, and again, that, as Mr. Greer pointed out, that was inappropriate to delegate that responsibility. It is the responsibility of the court to set the amount and to advise the defendant as to what that amount is."
In State v. Fair (June 13, 1990), Summit App. No. 14343, unreported, 1990 WL 80544, the case relied on by defendant, the trial court's original sentencing entry set forth a definite sum in restitution. However, five months later, the court imposed an additional sum in restitution. The court of appeals held that the imposition of a greater sentence violated the constitutional and statutory bar to multiple punishments for the same offense. According to the court of appeals, the imposition of a greater sentence violated defendant's expectation of finality.
This court recently reached a similar conclusion in State v.Cockerham (1997),
This case is distinguishable from both Fair and Cockerham, supra. In each of those cases, the trial court set forth a sum certain in restitution and then later, after execution of the original sentence had begun, increased the amount of restitution. Here, the trial court's original sentencing entry did not set forth a definite amount of restitution. Consequently, defendant herein could not hold the same expectation of finality as the defendants in Fair and Cockerham, supra. Indeed, the record supports the trial court's characterization of its own proceedings as simply a means of clarifying the terms of probation. Defendant's third assignment of error is overruled.
Having overruled each of defendant's assignments of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DESHLER and CLOSE JJ., concur.