As Reported by House Criminal Justice Committee 1
123rd General Assembly 4
Regular Session H. B. No. 364 5
1999-2000 6
REPRESENTATIVES GOODMAN-TIBERI-PETERSON-O'BRIEN-PATTON-TAYLOR- 8
BENDER-TRAKAS-CLANCY-BRITTON-FLANNERY-ALLEN-VERICH-WILLAMOWSKI 9
_________________________________________________________________ 10
A B I L L
To amend section 2921.41 of the Revised Code to 12
increase the penalty for theft in office in all 13
cases to a felony of the third degree.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 15
Section 1. That section 2921.41 of the Revised Code be 17
amended to read as follows: 18
Sec. 2921.41. (A) No public official or party official 27
shall commit any theft offense, as defined in division (K) of 28
section 2913.01 of the Revised Code, when either of the following 29
applies: 30
(1) The offender uses the offender's office in aid of 32
committing the offense or permits or assents to its use in aid of 33
committing the offense; 34
(2) The property or service involved is owned by this 36
state, any other state, the United States, a county, a municipal 37
corporation, a township, or any political subdivision, 38
department, or agency of any of them, is owned by a political 39
party, or is part of a political campaign fund. 40
(B) Whoever violates this section is guilty of theft in 42
office. Except as otherwise provided in this division, theft in 43
office is a felony of the fifth degree. If the value of property 45
or services stolen is five hundred dollars or more and is less 46
than five thousand dollars, theft in office is a felony of the 47
fourth degree. If the value of property or services stolen is 48
five thousand dollars or more theft in office is, a felony of the 49
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third degree. 50
(C)(1) A public official or party official who is 52
convicted of or pleads guilty to theft in office is forever 53
disqualified from holding any public office, employment, or 54
position of trust in this state. 55
(2)(a) A court that imposes sentence for a violation of 57
this section based on conduct described in division (A)(2) of 58
this section shall require the public official or party official 59
who is convicted of or pleads guilty to the offense to make 60
restitution for all of the property or the service that is the 61
subject of the offense, in addition to the term of imprisonment 62
and any fine imposed. A court that imposes sentence for a 63
violation of this section based on conduct described in division 64
(A)(1) of this section and that determines at trial that this 65
state or a political subdivision of this state if the offender is 66
a public official, or a political party in the United States or 67
this state if the offender is a party official, suffered actual 68
loss as a result of the offense shall require the offender to 69
make restitution to the state, political subdivision, or 70
political party for all of the actual loss experienced, in 71
addition to the term of imprisonment and any fine imposed. 72
(b)(i) In any case in which a sentencing court is required 74
to order restitution under division (C)(2)(a) of this section and 75
in which the offender, at the time of the commission of the 76
offense or at any other time, was a member of the public 77
employees retirement system, the police and firemen's disability 78
and pension fund, the state teachers retirement system, the 79
school employees retirement system, or the state highway patrol 80
retirement system; was an electing employee, as defined in 81
section 3305.01 of the Revised Code, participating in an 83
alternative retirement plan provided pursuant to Chapter 3305. of 85
the Revised Code; was a participating employee or continuing 86
member, as defined in section 145.71 of the Revised Code, in a 87
deferred compensation program offered by the Ohio public 88
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employees deferred compensation board; was an officer or employee 90
of a municipal corporation who was a participant in a deferred 91
compensation program offered by that municipal corporation; was 92
an officer or employee of a government unit;, as defined in 94
section 145.74 of the Revised Code, who was a participant in a 95
deferred compensation program offered by that government unit,; 96
or was a participating employee, continuing member, or 97
participant in any deferred compensation program described in 98
this division and a member of a retirement system specified in 99
this division or a retirement system of a municipal corporation, 100
the entity to which restitution is to be made may file a motion 101
with the sentencing court specifying any retirement system, any 102
entity providing any benefit under an alternative retirement 103
plan, and any deferred compensation program of which the offender 104
was a member, electing employee, participating employee, 105
continuing member, or participant and requesting the court to 106
issue an order requiring the specified retirement system, the 107
specified entity providing the benefit under the alternative 108
retirement plan, or the specified deferred compensation program, 109
or, if more than one is specified in the motion, the applicable 110
combination of these, to withhold the amount required as 112
restitution from any payment that is to be made under a pension, 113
annuity, or allowance, under a participant account, as defined in 114
section 145.71 of the Revised Code, or under any other type of 115
benefit, other than a survivorship benefit, that has been or is 116
in the future granted to the offender, from any payment of
accumulated employee contributions standing to the offender's 117
credit with that retirement system, that entity providing the 118
payment under the alternative retirement plan, or that deferred 119
compensation program, or, if more than one is specified in the 120
motion, the applicable combination of these, and from any payment 122
of any other amounts to be paid to the offender upon the 123
offender's withdrawal of the offender's contributions pursuant to 124
Chapter 145., 742., 3307., 3309., or 5505. of the Revised Code. 125
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A motion described in this division may be filed at any time 126
subsequent to the conviction of the offender or entry of a guilty 127
plea. Upon the filing of the motion, the clerk of the court in 128
which the motion is filed shall notify the offender, the 129
specified retirement system, the specified entity providing the 130
benefit under the alternative retirement plan, or the specified 131
deferred compensation program, or, if more than one is specified 132
in the motion, the applicable combination of these, in writing, 134
of all of the following: that the motion was filed; that the 135
offender will be granted a hearing on the issuance of the 136
requested order if the offender files a written request for a 137
hearing with the clerk prior to the expiration of thirty days 138
after the offender receives the notice; that, if a hearing is 139
requested, the court will schedule a hearing as soon as possible 140
and notify the offender, any specified retirement system, any 141
specified entity providing any benefit under an alternative 142
retirement plan, and any specified deferred compensation program 143
of the date, time, and place of the hearing; that, if a hearing 144
is conducted, it will be limited only to a consideration of 145
whether the offender can show good cause why the requested order 146
should not be issued; that, if a hearing is conducted, the court 147
will not issue the requested order if the court determines, based 148
on evidence presented at the hearing by the offender, that there 149
is good cause for the requested order not to be issued; that the 150
court will issue the requested order if a hearing is not 151
requested or if a hearing is conducted but the court does not 152
determine, based on evidence presented at the hearing by the 153
offender, that there is good cause for the requested order not to 154
be issued; and that, if the requested order is issued, any 155
retirement system, any entity providing any benefit under an 156
alternative retirement plan, and any deferred compensation 157
program specified in the motion will be required to withhold the 158
amount required as restitution from payments to the offender. 159
(ii) In any case in which a sentencing court is required 161
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to order restitution under division (C)(2)(a) of this section and 162
in which a motion requesting the issuance of a withholding order 163
as described in division (C)(2)(b)(i) of this section is filed, 164
the offender may receive a hearing on the motion by delivering a 165
written request for a hearing to the court prior to the 166
expiration of thirty days after the offender's receipt of the 167
notice provided pursuant to division (C)(2)(b)(i) of this 168
section. If a request for a hearing is made by the offender 169
within the prescribed time, the court shall schedule a hearing as 170
soon as possible after the request is made and shall notify the 171
offender, the specified retirement system, the specified entity 172
providing the benefit under the alternative retirement plan, or 173
the specified deferred compensation program, or, if more than one 175
is specified in the motion, the applicable combination of these, 177
of the date, time, and place of the hearing. A hearing scheduled 178
under this division shall be limited to a consideration of 179
whether there is good cause, based on evidence presented by the 180
offender, for the requested order not to be issued. If the court 181
determines, based on evidence presented by the offender, that 182
there is good cause for the order not to be issued, the court 183
shall deny the motion and shall not issue the requested order. 184
If the offender does not request a hearing within the prescribed 185
time or if the court conducts a hearing but does not determine, 186
based on evidence presented by the offender, that there is good 187
cause for the order not to be issued, the court shall order the 188
specified retirement system, the specified entity providing the 189
benefit under the alternative retirement plan, or the specified 190
deferred compensation program, or, if more than one is specified 191
in the motion, the applicable combination of these, to withhold 193
the amount required as restitution under division (C)(2)(a) of 194
this section from any payments to be made under a pension, 195
annuity, or allowance, under a participant account, as defined in 196
section 145.71 of the Revised Code, or under any other type of 197
benefit, other than a survivorship benefit, that has been or is 198
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in the future granted to the offender, from any payment of 199
accumulated employee contributions standing to the offender's 200
credit with that retirement system, that entity providing the 201
benefit under the alternative retirement plan, or that deferred 202
compensation program, or, if more than one is specified in the 203
motion, the applicable combination of these, and from any payment 205
of any other amounts to be paid to the offender upon the 206
offender's withdrawal of the offender's contributions pursuant to 207
Chapter 145., 742., 3307., 3309., or 5505. of the Revised Code, 208
and to continue the withholding for that purpose, in accordance 209
with the order, out of each payment to be made on or after the 210
date of issuance of the order, until further order of the court. 211
Upon receipt of an order issued under this division, the public 212
employees retirement system, the police and firemen's disability 213
and pension fund, the state teachers retirement system, the 214
school employees retirement system, the state highway patrol 215
retirement system, a municipal corporation retirement system, the 216
entity providing the benefit under the alternative retirement 217
plan, and the deferred compensation program offered by the Ohio 218
public employees deferred compensation board, a municipal 219
corporation, or a government unit, as defined in section 145.74 220
of the Revised Code, whichever are applicable, shall withhold the 221
amount required as restitution, in accordance with the order, 222
from any such payments and immediately shall forward the amount 223
withheld to the clerk of the court in which the order was issued 224
for payment to the entity to which restitution is to be made. 225
(iii) Service of a notice required by division 227
(C)(2)(b)(i) or (ii) of this section shall be effected in the 228
same manner as provided in the Rules of Civil Procedure for the 229
service of process. 230
(D) Upon the filing of charges against a person under this 232
section, the prosecutor, as defined in section 2935.01 of the 233
Revised Code, who is assigned the case shall send written notice 234
that charges have been filed against that person to the public 235
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employees retirement system, the police and firemen's disability 236
and pension fund, the state teachers retirement system, the 237
school employees retirement system, the state highway patrol 238
retirement system, the entity providing any benefit under an 239
alternative retirement plan, any municipal corporation retirement 240
system in this state, and the deferred compensation program 241
offered by the Ohio public employees deferred compensation board, 242
a municipal corporation, or a government unit, as defined in 243
section 145.74 of the Revised Code. The written notice shall 244
specifically identify the person charged. 245
Section 2. That existing section 2921.41 of the Revised 247
Code is hereby repealed. 248