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As Reported by House Criminal Justice Committee
123rd General Assembly
Regular Session
1999-2000 | H. B. No. 364 |
REPRESENTATIVES GOODMAN-TIBERI-PETERSON-O'BRIEN-PATTON-TAYLOR-
BENDER-TRAKAS-CLANCY-BRITTON-FLANNERY-ALLEN-VERICH-WILLAMOWSKI
A BILL
To amend section 2921.41 of the Revised Code to increase the penalty for theft
in office in all cases to a felony of the third degree.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2921.41 of the Revised Code be amended to read as
follows:
Sec. 2921.41. (A) No public official or party official
shall commit any theft offense, as defined in division (K) of
section 2913.01 of the Revised Code, when either of the following
applies:
(1) The offender uses the offender's office in aid of committing the
offense or permits or assents to its use in aid of committing the
offense;
(2) The property or service involved is owned by this
state, any other state, the United States, a county, a municipal
corporation, a township, or any political subdivision,
department, or agency of any of them, is owned by a political
party, or is part of a political campaign fund.
(B) Whoever violates this section is guilty of theft in
office. Except as otherwise provided in this division, theft in office is
a
felony of the fifth degree. If the value of property or services stolen is
five hundred dollars or more and is less than five thousand dollars, theft in
office is a felony of the fourth degree. If the value of property or services
stolen is five thousand dollars or more theft in office is, a
felony of the
third degree.
(C)(1) A public official or party official who is
convicted of or pleads guilty to theft in office is forever
disqualified from holding any public office, employment, or
position of trust in this state.
(2)(a) A court that imposes sentence for a violation of
this section based on conduct described in division (A)(2) of
this section shall require the public official or party official
who is convicted of or pleads guilty to the offense to make
restitution for all of the property or the service that is the
subject of the offense, in addition to the term of imprisonment
and any fine imposed. A court that imposes sentence for a
violation of this section based on conduct described in division
(A)(1) of this section and that determines at trial that this
state or a political subdivision of this state if the offender is
a public official, or a political party in the United States or
this state if the offender is a party official, suffered actual
loss as a result of the offense shall require the offender to
make restitution to the state, political subdivision, or
political party for all of the actual loss experienced, in
addition to the term of imprisonment and any fine imposed.
(b)(i) In any case in which a sentencing court is required
to order restitution under division (C)(2)(a) of this section and
in which the offender, at the time of the commission of the
offense or at any other time, was a member of the public
employees retirement system, the police and firemen's disability
and pension fund, the state teachers retirement system, the
school employees retirement system, or the state highway patrol
retirement system; was an electing employee, as defined in
section
3305.01 of the Revised Code, participating in an alternative retirement plan
provided
pursuant to Chapter 3305. of the Revised Code; was a participating
employee or continuing
member, as defined in section 145.71 of the Revised Code, in a
deferred compensation program offered by the Ohio public
employees deferred compensation board; was an officer or
employee
of a municipal corporation who was a participant in a deferred
compensation program offered by that municipal corporation; was
an
officer or employee of a government unit;, as defined in section
145.74 of the Revised Code, who was a participant in a deferred
compensation program offered by that government unit,; or was a
participating employee, continuing member, or participant in any
deferred compensation program described in this division and a
member of a retirement system specified in this division or a
retirement system of a municipal corporation, the entity to which
restitution is to be made may file a motion with the sentencing
court specifying any retirement system, any entity providing any
benefit under an alternative retirement plan, and any deferred
compensation program of which the offender was a member, electing
employee, participating employee, continuing member, or participant
and requesting the court to issue an order requiring the specified
retirement system, the specified entity providing the benefit under the
alternative retirement plan, or the specified deferred compensation
program, or, if more than one is specified in the
motion, the applicable combination of these, to withhold the
amount
required as restitution from any payment that is to be made under
a pension, annuity, or allowance, under a participant account, as
defined in section 145.71 of the Revised Code, or under any other
type of benefit, other than a survivorship benefit, that has been
or is in the future granted to the offender, from any payment of
accumulated employee contributions standing to the offender's
credit with that retirement system, that entity providing the payment under
the alternative retirement plan, or that deferred compensation
program, or, if more than one is specified in the
motion, the applicable combination of
these, and from any payment of
any other amounts to be paid to the offender upon the offender's withdrawal
of the offender's contributions pursuant to Chapter 145., 742., 3307.,
3309., or 5505. of the Revised Code. A motion described in this
division may be filed at any time subsequent to the conviction of
the offender or entry of a guilty plea. Upon the filing of
the motion, the clerk of the court in which the motion is filed
shall notify the offender, the specified retirement system, the specified
entity providing the benefit under the alternative retirement plan, or the
specified deferred compensation program, or, if more than
one is specified in the motion, the applicable combination of these,
in
writing, of all of the
following: that the motion was filed; that the offender will be
granted a hearing on the issuance of the requested order if the
offender files a written request for a hearing with the clerk
prior to the expiration of thirty days after the offender
receives the notice; that, if a hearing is requested, the court
will schedule a hearing as soon as possible and notify the
offender, any specified retirement system, any specified entity providing
any benefit under an alternative retirement plan, and any specified
deferred compensation program of the date, time, and place of the
hearing; that, if a hearing is conducted, it will be limited only
to a consideration of whether the offender can show good cause
why the requested order should not be issued; that, if a hearing
is conducted, the court will not issue the requested order if the
court determines, based on evidence presented at the hearing by
the offender, that there is good cause for the requested order
not to be issued; that the court will issue the requested order
if a hearing is not requested or if a hearing is conducted but
the court does not determine, based on evidence presented at the
hearing by the offender, that there is good cause for the
requested order not to be issued; and that, if the requested
order is issued, any retirement system, any entity providing any
benefit under an alternative retirement plan, and any deferred
compensation program specified in the motion will be required to
withhold the amount required as restitution from payments to the
offender.
(ii) In any case in which a sentencing court is required
to order restitution under division (C)(2)(a) of this section and
in which a motion requesting the issuance of a withholding order
as described in division (C)(2)(b)(i) of this section is filed,
the offender may receive a hearing on the motion by delivering a
written request for a hearing to the court prior to the
expiration of thirty days after the offender's receipt of the
notice provided pursuant to division (C)(2)(b)(i) of this
section. If a request for a hearing is made by the offender
within the prescribed time, the court shall schedule a hearing as
soon as possible after the request is made and shall notify the
offender, the specified retirement system, the specified entity providing
the benefit under the alternative retirement plan, or the specified
deferred
compensation program, or, if more than one is specified
in the motion, the
applicable combination of these, of the date, time, and place of
the hearing. A hearing scheduled
under this division shall be limited to a consideration of
whether there is good cause, based on evidence presented by the
offender, for the requested order not to be issued. If the court
determines, based on evidence presented by the offender, that
there is good cause for the order not to be issued, the court
shall deny the motion and shall not issue the requested order.
If the offender does not request a hearing within the prescribed
time or if the court conducts a hearing but does not determine,
based on evidence presented by the offender, that there is good
cause for the order not to be issued, the court shall order the
specified retirement system, the specified entity providing the benefit
under the alternative retirement plan, or the specified deferred
compensation program, or, if more than one is specified
in the motion, the applicable
combination of these, to withhold
the amount required as restitution under division (C)(2)(a) of
this section from any payments to be made under a pension,
annuity, or allowance, under a participant account, as defined in
section 145.71 of the Revised Code, or under any other type of
benefit, other than a survivorship benefit, that has been or is
in the future granted to the offender, from any payment of
accumulated employee contributions standing to the offender's
credit with that retirement system, that entity providing the benefit under
the alternative retirement plan, or that deferred compensation
program, or, if more than one is specified in the
motion, the
applicable combination of these, and from any payment of
any other amounts to be paid to the offender upon the offender's withdrawal
of the offender's contributions pursuant to Chapter 145., 742., 3307.,
3309., or 5505. of the Revised Code, and to continue the
withholding for that purpose, in accordance with the order, out
of each payment to be made on or after the date of issuance of
the order, until further order of the court. Upon receipt of an
order issued under this division, the public employees retirement
system, the police and firemen's disability and pension fund, the
state teachers retirement system, the school employees retirement
system, the state highway patrol retirement system, a municipal
corporation retirement system, the entity providing the benefit under the
alternative retirement plan, and the deferred compensation
program offered by the Ohio public employees deferred
compensation board, a municipal corporation, or a government
unit, as defined in section 145.74 of the Revised Code, whichever
are applicable, shall withhold the amount required as
restitution, in accordance with the order, from any such payments
and immediately shall forward the amount withheld to the clerk of
the court in which the order was issued for payment to the entity
to which restitution is to be made.
(iii) Service of a notice required by division
(C)(2)(b)(i) or (ii) of this section shall be effected in the
same manner as provided in the Rules of Civil Procedure for the
service of process.
(D) Upon the filing of charges against a person under this
section, the prosecutor, as defined in section 2935.01 of the
Revised Code, who is assigned the case shall send written notice
that charges have been filed against that person to the public
employees retirement system, the police and firemen's disability
and pension fund, the state teachers retirement system, the
school employees retirement system, the state highway patrol
retirement system, the entity providing any benefit under an alternative
retirement plan, any municipal corporation retirement system in
this state, and the deferred compensation program offered by the
Ohio public employees deferred compensation board, a municipal
corporation, or a government unit, as defined in section 145.74
of the Revised Code. The written notice shall specifically
identify the person charged.
Section 2. That existing section 2921.41 of the Revised Code is hereby
repealed.
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