[Cite as State v. Lowe, 2013-Ohio-4224.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130048
TRIAL NO. B-1207156
Plaintiff-Appellee, :
vs. :
O P I N I O N.
KEVIN LOWE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: September 27, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Josh Thompson, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
S YLVIA S IEVE H ENDON , 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. R.C. 2929.18(A). One such financial sanction is
restitution to compensate the victim for economic loss suffered as a result of the offense.
See State v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444, ¶ 6; R.C.
2929.18(A)(1). Because it is part of the sentence, an order of restitution is a final order.
Danison at ¶ 8.
{¶4} If the court imposes restitution at sentencing, the court must determine the
amount of restitution at that time. R.C. 2929.18(A)(1); State v. Purnell, 171 Ohio App.3d
446, 2006-Ohio-6160, 871 N.E.2d 613, ¶ 9, (1st Dist.). The court may base the amount of
restitution on a recommendation by the victim, the offender, a presentence-investigation
report, estimates or receipts indicating the cost of repairing or replacing the property, and
other information. State v. Lalain, __ Ohio St.3d ___, 2013-Ohio-3093, ___ N.E.2d ___,
at paragraph one of the syllabus; R.C. 2929.18(A)(1). But the amount of restitution ordered
cannot be greater than the amount of economic loss suffered by the victim as a direct and
proximate result of the offense. Id. If the offender, victim, or survivor disputes the amount
of restitution, the trial court must hold a hearing. Lalain at paragraph two of the syllabus;
Purnell at ¶ 8.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶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 R.C. 2929.18(A)(1)
required the court, not the probation department, to determine the amount of restitution at
sentencing. Id. at ¶ 17. We vacated that part of the sentences ordering restitution and
remanded the case to the trial court to impose a definite amount of restitution. Id.
{¶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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶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 R.C. 2505.02 because the order did not
determine an amount of restitution. Id. at 77. In addition, it was clear from the record that
the court had contemplated further proceedings. See id. at 76. By contrast, the sentencing
entry in this case contained no suggestion that the court contemplated or anticipated further
proceedings. See, e.g., State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d
164. Thus, the order here does not present the same lack of finality that we found in
Holmes.
{¶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.
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