[Cite as State v. Watts, 2012-Ohio-4984.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25021
v. : T.C. NO. 10CR1625
KYLE A. WATTS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of October , 2012.
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R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No.
0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Kyle
Watts, filed
[Cite as State v. Watts, 2012-Ohio-4984.]
February 6, 2012. Watts pled guilty to one count of aggravated vehicular assault, in
violation of R.C. 2903.08(A)(1), a felony of the third degree, and one count of driving while
under the influence of alcohol, in violation of R.C.4511.19(A1a)/(G1a), a misdemeanor of
the first degree. Watts received a one year sentence for the felony offense, and 180 days for
the misdemeanor offense, to be served concurrently, for an aggregate term of one year.
Watts was also ordered to pay $46,800.00 in restitution to Donald Neace for economic loss.
{¶ 2} On September 1, 2011, Watts filed a “Motion to Terminate Restitution
Order,” in which he asserted that since the sentencing hearing, “it was discovered that the
complaining witness had previously released all claims with the Defendant in the amount of
$100,000.00 * * * . Further, the complaining witness had released the Defendant from any
further claims.” Watts asserted that the restitution order was satisfied and should be
terminated. The State responded that the trial court lacked jurisdiction to reconsider the
order of restitution.
{¶ 3} On January 11, 2012, the trial court overruled Watt’s motion and
determined that its restitution order was for “lost wages and other expenses related to the
victim’s disability caused by injuries suffered in the accident and as a direct result of the
Defendant’s illegal activity.” The court noted that the “victim received personal injury
settlement proceeds for other losses that were suffered,” and that no “third party has
compensated the victim for the economic losses he suffered that are the basis of the
restitution order.”
{¶ 4} Watts asserts one assignment of error as follows:
“THE TRIAL COURT ABUSED ITS DISCRETION IN UPHOLDING
RESTITUTION FOR LOST WAGES AND MEDICAL EXPENSES WHEN THE VICTIM
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RECEIVED INSURANCE PROCEEDS FROM THOSE SAME EXPENSES.”
{¶ 5} The State responds that Watts’ arguments are barred by the doctrine of res
judicata, and that the trial court “did not err by overruling Watts’ motion to terminate
restitution because the court lacked authority to reconsider its own final judgment once the
sentence was executed.”
{¶ 6} We initially note that Watts failed to provide a transcript of the proceedings
below. “The duty to provide a transcript for appellate review falls upon the appellant. * * *
. An appellant bears the burden of showing prejudicial error by reference to matters in the
record. * * * .” Shirley v. Kruse, 2d Dist. Greene No. 2006-CA-12, 2007-Ohio-193, ¶ 22.
Nevertheless, it does not appear that the trial court conducted a hearing on Watts’ motion.
{¶ 7} R.C. 2953.02 “provides that a court of appeals may review a ‘judgment’
or ‘final order.’” State v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444, ¶ 5.
“A final order is an order that in effect determines the case. R.C. 2505.02(B)(1) * * * .” Id.
As the Court in Danison noted:
Generally, in a criminal case, the final judgment is the sentence. * * * The
sentence is the sanction or combination of sanctions imposed by the sentencing
court on an offender who pleads guilty to or is convicted of an offense. R.C.
2929.01(FF). The sentence imposed on an offender for a
felony may include financial sanctions, including restitution in an amount based
on the victim’s economic loss. R.C. 2929.18(A)(1). Id., ¶ 6.
The Danison court concluded that “an order of restitution imposed by the sentencing court on an
offender for a felony is part of the sentence and, as such, is a final and appealable order.” Id., ¶
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8.
{¶ 8} However, Crim.R. 57(B) provides: “If no procedure is specifically prescribed by
rule, the court may proceed in any lawful manner not inconsistent with these rules of criminal
procedure, and shall look to the rules of civil procedure and to the applicable law if no rule of
criminal procedure exists.”
{¶ 9} Rather than asking the court to reconsider its restitution order, Watts asked the
court to vacate the order because, in his view, the victim had been made whole for his economic
losses for which the restitution was ordered. Watts’ motion is akin to a Civ.R. 60(B)(4) motion.
That rule provides: “On motion and upon such terms as are just, the court may relieve a party or
his legal representative from a final judgment, order or proceeding for the following reasons: * *
* (4) the judgment has been satisfied, released or discharged * * * or it is no longer equitable that
the judgment should have prospective application.” Since Crim.R. 57(B) authorizes reliance
upon the Civil Rules when appropriate, we hereby reverse and remand the matter to the trial court
to conduct an evidentiary hearing to determine whether the restitution order was, in fact,
satisfied by virtue of a civil settlement.
{¶ 10} Judgment on Watts’ motion to terminate restitution is reversed and remanded for
further proceedings consistent with this opinion.
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GRADY, P.J. and HALL, J., concur.
Copies mailed to:
R. Lynn Nothstine
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Timothy N. O’Connell
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