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State v. Cataraso6/24/2002
DECISION AND JUDGMENT ENTRY
. Thomas C. Cataraso appeals the Ross County Court of Common Pleas' judgment finding that he did not timely file his motion to void his sentence. Cataraso contends that the trial court erred in treating his motion as a petition for post-conviction relief because it challenged the trial court's subject matter jurisdiction, which may be raised at any time.
Because the trial court possessed jurisdiction to sentence Cataraso, we disagree. Cataraso further asserts that, even if his motion did constitute a petition for post-conviction relief, he timely filed it pursuant to the exception provided for petitioners who are unavoidably prevented from discovering facts upon which they must rely to present their claims for relief. Because we find that Cataraso could have challenged his sentence on direct appeal on the same grounds he now advances, we disagree. Accordingly, we affirm the judgment of the trial court.
I.
. The Ross County Court of Common Pleas convicted Cataraso of passing bad checks after he pled guilty to charges against him. On December 13, 1999, the court sentenced Cataraso to prison and ordered him to pay restitution. Cataraso did not appeal.
. While in prison, Cataraso discovered the cases of State v. Ward (1999), 135 Ohio App.3d 76, and State v. Hooks (2000), 135 Ohio App.3d 746. In Ward and Hooks, the Twelfth and Tenth District Courts of Appeals found that restitution is a valid sentence only to compensate for crimes that pose the threat of personal injury or death. Both courts found that their respective trial courts had exceeded the authority conferred upon them by statute in ordering restitution for crimes that did not cause or threaten physical injury or death.
. On August 9, 2001, Cataraso filed a motion to vacate the restitution order imposed upon him on the grounds that his crime did not pose any threat of injury or death. The trial court treated Cataraso's motion as a petition for post-conviction relief and dismissed it as untimely. Cataraso appeals, asserting the following assignments of error:
. "I. The trial court erred by failing to vacate void restitution orders which restitution orders were imposed contrary to Ohio law.
. "II. The trial court erred by construing Appellant's motion to vacate (void) restitution orders as a motion for post-conviction relief pursuant to R.C. 2953.21 when Appellant did not raise a constitutional issue in his motion to vacate restitution order."
II.
. We first consider Cataraso's second assignment of error. Cataraso contends that the trial court erred by construing his motion to vacate or void as a motion for post-conviction relief. Cataraso asserts that his motion does not constitute a motion for post-conviction relief because he did not assert a violation of his constitutional rights, but rather asserted that the trial court lacked subject matter jurisdiction to order him to pay restitution. Specifically, Cataraso contends that because the trial judge acted beyond his statutory authority, the trial court lacked subject matter jurisdiction of his case. Cataraso further asserts that because he is challenging the subject matter jurisdiction of the trial court, the trial court erred in ruling that he failed to file his motion within the statutory time frame, because one may challenge a void judgment at any time. See State v. Wilson (1995), 73 Ohio St.3d 40, 45-46, fn. 6.
. If the trial court was without subject matter jurisdiction of Cataraso's case, his conviction and sentence would be void ab initio and Cataraso could raise the issue at any time. See Gahanna v. Jones-Williams (1
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