583 N.E.2d 1076 | Ohio Ct. App. | 1990
Lead Opinion
Appellant, Kenneth Wohlgemuth, pleaded guilty to two counts of gross sexual imposition of persons under the age of thirteen, a violation of R.C.
R.C.
"Whoever is convicted of or pleads guilty to a felony * * * except as provided in division (D) or (E) of this section, shall be imprisoned * * * and, in addition, may be fined or required to make restitution, or both. * * * The fine and restitution shall be fixed by the court as provided in this section.
Divisions (D) and (E) of that section concern felonies of the third and fourth degree. Appellant pleaded guilty to a felony of the third degree. R.C.
"Whoever is convicted of or pleads guilty to a felony of the third or fourth degree * * * may be fined or required to make restitution. The restitution shall be fixed by the court as provided in this section."
R.C.
"The court, in any other case, 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 * * *."
A similar statute, R.C.
"The court may require a person who is convicted of or pleads guilty to a misdemeanor 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 * * *."
In construing R.C.
With the exception of the level of offense to which the offender has pleaded or of which he has been found guilty, the language of R.C.
In Smith, the defendant was convicted of complicity in causing others to assault the victim. Complicity is a first degree misdemeanor. The journal entry stated:
"42 days in jail and costs. Suspend jail at rate of 1 day for every $43.00 paid to victim, Jovan Novakovic. Total restitution to victim $1,800.00 — over and above any money Insurance Company claims for subrogation rights. 3 years inactive probation, may terminate probation upon completion of sentence." (Emphasis added.)
The defendant argued that under R.C.
"However, the court did not * * * order the defendant to pay the victim $1,800.00 as restitution. Rather, the court sentenced the defendant to jail. It then suspended that sentence and granted her probation on condition that she compensate the victim for damages caused by the offense in which she participated." Id.
In Smith the defendant had an option — serve the time or compensate the victim. Here, the journal entry read as follows:
"Defendant * * * is sentenced * * * under each count for a term of (1) year on each count, concurrent.
"Execution of sentence suspended, defendant placed on five years probation; serve sixty (60) days in county jail; seek and maintain employment outside field of elementary education as well as occupations involving association with children; discontinue coaching children's sports; University Hospital sex offenders program screening and counselling. Continue counselling with Dr. Susan Scharr; pay restitution of$56,855.00. Pay costs." (Emphasis added.)
Smith did not have to pay any amount. Appellant was ordered to pay restitution and must do so whether he serves the modified sentence or the original sentence upon revocation of probation for any violation. In Smith, this court found that the journal entry did not order restitution and therefore R.C.
Here, there is an order of restitution. Even when the order of restitution is a condition of probation it is still an independent order that must be followed whether appellant serves the prison time or not. (In Eastlake v. Kosec, supra, the restitution order voided was a condition of probation.) The clear language of R.C.
R.C.
Appellant also contends that the trial judge abused his discretion when he sentenced appellant to five years' probation. Appellant argues that he is socially and economically paralyzed by the stigma of his conviction and the restrictive conditions of his probation.
Appellant could have been sentenced to consecutive eighteen-month terms. R.C.
These assignments of error are without merit.
Appellant contends that due to the court's order that he refrain from teaching or coaching children he is unable to pay the ordered restitution despite a good faith effort to do so. He also argues that there was no evidentiary hearing to determine the damages and the costs.3 The court's order adopted the recommendation of the psychologist who examined appellant. There is no evidence of the damages, costs or the effort or ability of appellant. A hearing is required to prove damages and the costs incurred. State v. Irvin (1987),
The judgment is reversed and vacated in part and affirmed in part. The order of restitution is vacated and the remainder of the sentence is upheld.
Judgment accordingly.
JOHN F. CORRIGAN, J., concurs.
PATTON, C.J., concurs separately.
Concurrence Opinion
I concur with the holding reached today but believe that our decision is in conflict with State v. Williams (1986),
Williams involved a defendant convicted of vehicular homicide and ordered to make restitution to the victims in the amount of $10,000 for costs involving medical and funeral expenses. TheWilliams court reversed and remanded *201 for the sole purpose of ascertaining the economic loss suffered as a result of the offense.
Williams does not directly address the issue of whether R.C.
The instant case involves a similar issue of the victim of gross sexual imposition receiving restitution for medical expenses incurred as a result of the offense. We hold that recovery of medical expenses is not permitted under R.C.