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State v. Hubbell1/30/2004
Rendered on the 30th day of January, 2004.
. Mark A. Hubbell was found guilty upon a plea of no contest in the Darke County Court of Common Pleas to one count of nonsupport of dependents, a felony of the fifth degree, in violation of R.C. 2919.21(B). On March 21, 2003, the court conducted a sentencing hearing, at which Hubbell was placed on community control sanctions for a period of 36 months. Hubbell was further ordered to report to the Probation Department, "pay child support or arrearage or comply with the seek work law." In addition, the court required that Hubbell perform 40 hours of community service; pay court costs, appointed attorney fees and expenses; attend a budget management class; abstain from alcohol and illegal drugs; and not violate any federal, state or local laws or ordinances. On March 24, 2003, the court issued a written judgment entry, setting forth its sentence. The judgment required that Hubbell "pay restitution of $49,263.33 as ordered."
. On appeal, Hubbell asserts one assignment of error, stemming from his sentence.
. "THE COURT DID NOT HAVE THE AUTHORITY TO SET AN AMOUNT OF RESTITUTION FOR A CONVICTION UNDER OHIO REVISED CODE SECTION 2919.21."
. Hubbell claims that the trial court erroneously ordered him to pay restitution in the amount of $49,264.33, the alleged amount of his past due child support . Although he has asserted only one assignment of error, his argument is three-fold. First, Hubbell asserts that R.C. 2929.11 does not authorize a court to order back child support as restitution in cases involving nonsupport of dependents. Second, as an alternative argument, he contests the amount of the ordered restitution, arguing that the restitution order should not have included the child support payments that accrued before the date alleged in the indictment. Third, Hubbell indicates that his ex-wife is employed by the Darke County Child Support Enforcement Agency, and he requests that a hearing be conducted (presumably by the domestic relations division of the common pleas court) so that the amount of his arrearage can be accurately and fairly determined.
. We begin with Hubbell's threshold argument that there exists no legal basis on which to order restitution for failure to pay child support . As noted by Hubbell, several courts have held that a trial court may not order the payment of past due child support, in the form of restitution, as part of a felony defendant's sentence for nonsupport of a dependent. See, e.g., State v. Herring (1993), 88 Ohio App.3d 228, 623 N.E.2d 687; State v. Keslar (Nov. 17, 1999), Hocking App. No. 98CA20; State v. Williams (May 28, 1996), Butler App. No. CA97-10202. However, in each of those cases, the appellate court was interpreting the former version of R.C. 2929.11(E), which then governed the authority of the trial court to order restitution for a felony. That former statutory provision provided:
. "The court * * * 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, as defined in division (K) of section 2913.01 of the Revised Code, that the person committed."
. In light of the statutory language which limited restitution to "property damage," appellate courts consistently held that the former versions of R.C. 2929.11(E) and R.C. 2929.21(E) did not authorize the payment of past child support as restitution. At the same time, however, appellate courts recognized that restitution could be imposed as a condition of probation. Herring, supra; State v. Liz
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