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State v. Quandt9/19/2002
JUDGMENT AFFIRMED IN PART, REVERSED IN PART.
. Defendant-appellant David A. Quandt appeals from a common pleas court order sentencing him to five years imprisonment, the maximum term allowable for a third degree felony, and ordering him to pay restitution in the amount of $991,932.02. He argues:
. "[I.] THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO A TERM OF IMPRISONMENT FOR MORE THAN THE MINIMUM SENTENCE.
. "[II.] THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT, A FIRST TIME OFFENDER, TO THE MAXIMUM TERM OF IMPRISONMENT.
. "[III.] THE TRIAL COURT IMPROPERLY ORDERED RESTITUTION FOR AN AMOUNT OF MONEY ALREADY DEALT WITH IN A CIVIL SUIT." [Emphasis in original.]
. We find no error in the term of imprisonment imposed by the common pleas court and affirm its decision in that respect. However, the court had no statutory authority to require appellant to pay restitution. Therefore, we are constrained to reverse that portion of the judgment.
PROCEDURAL HISTORY
. Appellant was charged with two counts of theft by deception of property or services valued at $100,000 or more. One of these charges concerned thefts that occurred from September 1, 1983 to June 30, 1996; the other concerned thefts from July 1, 1996 to November 1, 1999.
. The second count of the indictment was amended to include thefts occurring from January 1, 1990 to November 1, 1999. Appellant plead guilty to the amended charge; the other charge was dismissed. On March 31, 2000, the common pleas court entered judgment against appellant, sentencing him to a term of five years imprisonment and ordering him to pay restitution of $2,138,224.39.
. On appeal, this court reversed and remanded for resentencing, holding that the common pleas court had not made the findings necessary to impose a sentence greater than the statutory minimum term of imprisonment, nor had it made the findings necessary to impose the longest available prison term. This court also found appellant's argument in opposition to the common pleas court's order of restitution was moot, and suggested that appellant present this argument to the common pleas court at the time of resentencing. State v. Quandt (May 21, 2001), Cuyahoga App. No. 77943.
. The common pleas court held another sentencing hearing on August 15, 2001. The state offered into evidence the testimony the court had heard at the first sentencing hearing. In addition, the parties each presented testimony concerning the losses suffered by the victims of the theft. The court then made the following findings on the record:
. "So, the parties having had an opportunity to offer what they're going to offer from the State of Ohio and the defense, at this time, the Court will now make its findings. And the Court, again, states for the record, Court has carefully considered and analyzed the presentence investigation, the letters from the various parties and interested persons, the plea itself and all the surrounding circumstances including the Defendant's resentencing memorandum and the exhibits offered here today which included the testimony of the various victims from the firm of Quandt, Giffels & Buck, who testified live at the last hearing.
. "And, the Court believes it was appropriate and the right thing not to put them through that again, having personally observed their emotions at the last hearing.
. "The Court will state the following is the basis and reasons for the Court's ruling and findings under Senate Bill 2 in this particular matter.
. "* * * *
. "The Court has taken into consideration h
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