State v. StilesState v. Stiles
Billy W. Guinigundo, 5331 South Gilmore Road, Fairfield, Ohio 45014, for defendant-appellant
O P I N I O N
HUTZEL, J.
{¶1} Defendant-appellant, Glen Stiles, appeals the decision of the Hamilton Municipal Court ordering him to pay $3,833 in restitution in a theft case. For the reasons set forth below, we reverse the trial court‘s restitution order.
{¶2} In the fall of 2010, appellant was charged with one count of breaking and entering and one count of theft, both felonies of the fifth degree. The state alleged that
{¶3} Appellant appeals, raising one assignment of error:
{¶4} “THE TRIAL COURT ERRED WHEN IT ORDERED MR. STILES TO PAY RESTITUTION IN THE AMOUNT OF $3,833.00.”
{¶5} Appellant argues that because he entered a guilty plea to a misdemeanor theft, and not to a fifth-degree felony theft offense, the amount of restitution to be paid to the victim of the offense cannot exceed $500. We agree.
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{¶7} As this court has previously recognized, “restitution can only be ordered for those acts that constitute the crime for which the defendant has been convicted and sentenced.” Id. at ¶22, quoting State v. Smith, Butler App. No. CA2004-11-275, 2005-Ohio-6551, ¶25. Because appellant was convicted of misdemeanor theft, the amount of restitution to be paid to the victim of the offense must be less than $500. Henry at ¶22; State v. Moore-Bennett, Cuyahoga App. No. 95450, 2011-Ohio-1937, ¶17 (although defendant was originally charged with a fifth-degree felony theft offense, trial court erred in ordering defendant to pay over $2,000 in restitution when defendant was convicted of misdemeanor theft; upon
{¶8} As the dissent indicates,
{¶9} Accordingly, we vacate the restitution order and remand this matter to the trial court for further proceedings in accordance with this opinion.
{¶10} Judgment reversed and remanded for further proceedings.
POWELL P.J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting.
{¶11} The majority follows State v. Henry, Clermont App. No. CA2009-12-081, 2010-Ohio-4571, which limits the amount of restitution a trial court may require a defendant pay the victim of a theft offense to $499.99. I respectfully dissent from the majority‘s holding today, and offer this explanation as to why we should depart from the interpretation created in State v. Henry and return to the plain meaning of
{¶12} A trial court is statutorily required to determine the amount of restitution owed to the victim of a particular offense. If the restitution amount tendered to the court is disputed,
{¶13} There is clearly no wording in the restitution statute which limits the victim‘s economic loss to $499.99. Nor does any express wording in
{¶14} Statutory language prohibits restitution from exceeding the loss actually suffered as a direct and proximate result of the damages arising from the defendant‘s conduct in the case actually before the court. This insures fairness to the offender so that he cannot be ordered to pay restitution for other losses that are not the result of his conduct. If the victim‘s request for restitution is for economic loss that is remote, or indirect, the court is directed not to order such damages as economic loss attendant to the offense.
{¶15} Insuring that restitution does not exceed what the offender directly and proximately caused the victim renders the defendant fully accountable for his conduct, while not permitting restitution to become punitive. The statute does not expressly set a limit of $499.99 for a theft victim‘s economic loss. The allegation that a misdemeanor theft offense has occurred and the amount is under $500 may govern an element of the offense or the degree of the crime, but it does not vitiate or render meaningless the proceedings and purpose otherwise clearly expressed in
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{¶19} The Ohio Supreme Court in State v. Adams (1988), 39 Ohio St.3d 186, unequivocally stated that sales tax attached to the replacement of a stolen item is not part of the valuation for purposes of
{¶20} During the restitution hearing sub judice, the defendant did dispute the restitution amount but never argued, or even remotely suggested, that the victim‘s economic loss should be less than $500. The defendant knew that he would be paying significant restitution as a direct and proximate result of his offense. Thus, while the trial court properly fulfilled its mandatory duty to determine restitution and conduct a hearing, the defendant waived his current argument before this court by not tendering the same issue first for consideration by the trial court. State v. Guzman-Martinez, Warren App. No. CA2010-06-059, 2011-Ohio-1310.
{¶21} In the instant case, Stiles was originally charged with a felony theft offense of over $500. The defendant pled guilty to the lesser offense in municipal court immediately
{¶22} The Ohio Supreme Court has directed that “[w]e must give effect to every term in a statute and avoid a construction that would render any provision meaningless, inoperative, or superfluous.” Rhodes v. City of Philadelphia, 2011-Ohio-3279, slip opinion. The restitution statute clearly and unequivocally states that the restitution is to be “based on the victim‘s economic loss” as a direct and proximate result of the offenses committed by the offender.
{¶23} Dissent on this issue is not a new concept to this court. Judge Walsh, now retired from the Twelfth District, also dissented when presented with a similar factual scenario, and stated that the majority‘s decision in his case interpreted “a restriction in determining restitution that is neither contained in nor authorized by the restitution statute.” State v. Miller, Butler App. No. CA2007-11-295, 2008-Ohio-5661, ¶16, Walsh, J. dissenting. I share Judge Walsh‘s concern regarding the majority‘s application, which not only limits a
{¶24} For these reasons, I would reverse our holding in State v. Henry and affirm the trial court herein, thus loosening our grip on the trial court‘s ability to rectify the harm caused to victims of crime in theft offenses.