The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
H. B. No. 526 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
| |
Representatives Pryor, Stewart
Cosponsors:
Representatives Beck, Domenick
A BILL
To amend sections 2929.18, 2929.20, 2929.22, 2929.28,
2930.01, 2930.02, 2930.06, 2930.08, 2930.14,
2930.17, and 2930.19 and to enact section 2929.281
of the Revised Code to make restitution mandatory
in cases of felonies and misdemeanor offenses of
violence, to modify the determination and
enforcement of restitution, and to enhance the
participation of crime victims and crime victim
advocates in the sentencing or disposition and
judicial or early release of offenders and
delinquent children.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2929.18, 2929.20, 2929.22, 2929.28,
2930.01, 2930.02, 2930.06, 2930.08, 2930.14, 2930.17, and 2930.19
be amended and section 2929.281 of the Revised Code be enacted to
read as follows:
Sec. 2929.18. (A) Except as otherwise provided in this
division and in addition to imposing court costs pursuant to
section 2947.23 of the Revised Code, the court imposing a sentence
upon an offender for a felony may sentence the offender to any
financial sanction or combination of financial sanctions
authorized under this section or, in the circumstances specified
in section 2929.32 of the Revised Code, may impose upon the
offender a fine in accordance with that section, and shall
sentence the offender to make restitution pursuant to this section
and section 2929.281 of the Revised Code. Financial sanctions that
either are required to be or may be imposed pursuant to this
section include, but are not limited to, the following:
(1) Restitution by the offender to the victim of the
offender's crime or any survivor of the victim, in an amount based
on the victim's economic loss. If the court imposes restitution,
the The court shall order that the
full restitution be made to the
victim in open court, to the adult probation department that
serves the county on behalf of the victim, to the clerk of courts,
or to another agency designated by the court. If the court imposes
restitution, at At sentencing, the court shall determine the
amount of restitution to be made by the offender. If the court
imposes restitution, the court may base the amount of restitution
it orders on an amount recommended by the victim, the offender, a
presentence investigation report, estimates or receipts indicating
the cost of repairing or replacing property, and other
information, provided that the The prosecuting attorney, the
prosecuting attorney's designee, or the probation department upon
agreement with the prosecuting attorney, shall, and the offender
may, present evidence relevant to the determination of the amount
of restitution. The amount the court orders as restitution shall
not exceed the amount of the economic loss suffered by the victim
as a direct and proximate result of the commission of the offense.
If the court decides to impose restitution, the The court shall
hold a hearing on restitution if the offender, victim, or survivor
disputes the amount. Whether or not the court holds a hearing, the
court shall determine the amount of full restitution by a
preponderance of the evidence. All restitution payments shall be
credited against any recovery of economic loss in a civil action
brought by the victim or any survivor of the victim against the
offender.
If the court imposes restitution, the The court may order
that the offender pay a surcharge of not more than five per cent
of the amount of the restitution otherwise ordered to the entity
responsible for collecting and processing restitution payments.
The victim or survivor may request that the prosecutor in the
case file a motion, or the offender may file a motion, for
modification of the payment terms of any restitution ordered. If
the court grants the motion, it may modify the payment terms as it
determines appropriate.
(2) Except as provided in division (B)(1), (3), or (4) of
this section, a fine payable by the offender to the state, to a
political subdivision, or as described in division (B)(2) of this
section to one or more law enforcement agencies, with the amount
of the fine based on a standard percentage of the offender's daily
income over a period of time determined by the court and based
upon the seriousness of the offense. A fine ordered under this
division shall not exceed the maximum conventional fine amount
authorized for the level of the offense under division (A)(3) of
this section.
(3) Except as provided in division (B)(1), (3), or (4) of
this section, a fine payable by the offender to the state, to a
political subdivision when appropriate for a felony, or as
described in division (B)(2) of this section to one or more law
enforcement agencies, in the following amount:
(a) For a felony of the first degree, not more than twenty
thousand dollars;
(b) For a felony of the second degree, not more than fifteen
thousand dollars;
(c) For a felony of the third degree, not more than ten
thousand dollars;
(d) For a felony of the fourth degree, not more than five
thousand dollars;
(e) For a felony of the fifth degree, not more than two
thousand five hundred dollars.
(4) A state fine or costs as defined in section 2949.111 of
the Revised Code.
(5)(a) Reimbursement by the offender of any or all of the
costs of sanctions incurred by the government, including the
following:
(i) All or part of the costs of implementing any community
control sanction, including a supervision fee under section
2951.021 of the Revised Code;
(ii) All or part of the costs of confinement under a sanction
imposed pursuant to section 2929.14, 2929.142, or 2929.16 of the
Revised Code, provided that the amount of reimbursement ordered
under this division shall not exceed the total amount of
reimbursement the offender is able to pay as determined at a
hearing and shall not exceed the actual cost of the confinement;
(iii) All or part of the cost of purchasing and using an
immobilizing or disabling device, including a certified ignition
interlock device, or a remote alcohol monitoring device that a
court orders an offender to use under section 4510.13 of the
Revised Code.
(b) If the offender is sentenced to a sanction of confinement
pursuant to section 2929.14 or 2929.16 of the Revised Code that is
to be served in a facility operated by a board of county
commissioners, a legislative authority of a municipal corporation,
or another local governmental entity, if, pursuant to section
307.93, 341.14, 341.19, 341.23, 753.02, 753.04, 753.16, 2301.56,
or 2947.19 of the Revised Code and section 2929.37 of the Revised
Code, the board, legislative authority, or other local
governmental entity requires prisoners to reimburse the county,
municipal corporation, or other entity for its expenses incurred
by reason of the prisoner's confinement, and if the court does not
impose a financial sanction under division (A)(5)(a)(ii) of this
section, confinement costs may be assessed pursuant to section
2929.37 of the Revised Code. In addition, the offender may be
required to pay the fees specified in section 2929.38 of the
Revised Code in accordance with that section.
(c) Reimbursement by the offender for costs pursuant to
section 2929.71 of the Revised Code.
(B)(1) For a first, second, or third degree felony violation
of any provision of Chapter 2925., 3719., or 4729. of the Revised
Code, the sentencing court shall impose upon the offender a
mandatory fine of at least one-half of, but not more than, the
maximum statutory fine amount authorized for the level of the
offense pursuant to division (A)(3) of this section. If an
offender alleges in an affidavit filed with the court prior to
sentencing that the offender is indigent and unable to pay the
mandatory fine and if the court determines the offender is an
indigent person and is unable to pay the mandatory fine described
in this division, the court shall not impose the mandatory fine
upon the offender.
(2) Any mandatory fine imposed upon an offender under
division (B)(1) of this section and any fine imposed upon an
offender under division (A)(2) or (3) of this section for any
fourth or fifth degree felony violation of any provision of
Chapter 2925., 3719., or 4729. of the Revised Code shall be paid
to law enforcement agencies pursuant to division (F) of section
2925.03 of the Revised Code.
(3) For a fourth degree felony OVI offense and for a third
degree felony OVI offense, the sentencing court shall impose upon
the offender a mandatory fine in the amount specified in division
(G)(1)(d) or (e) of section 4511.19 of the Revised Code, whichever
is applicable. The mandatory fine so imposed shall be disbursed as
provided in the division pursuant to which it is imposed.
(4) Notwithstanding any fine otherwise authorized or required
to be imposed under division (A)(2) or (3) or (B)(1) of this
section or section 2929.31 of the Revised Code for a violation of
section 2925.03 of the Revised Code, in addition to any penalty or
sanction imposed for that offense under section 2925.03 or
sections 2929.11 to 2929.18 of the Revised Code and in addition to
the forfeiture of property in connection with the offense as
prescribed in Chapter 2981. of the Revised Code, the court that
sentences an offender for a violation of section 2925.03 of the
Revised Code may impose upon the offender a fine in addition to
any fine imposed under division (A)(2) or (3) of this section and
in addition to any mandatory fine imposed under division (B)(1) of
this section. The fine imposed under division (B)(4) of this
section shall be used as provided in division (H) of section
2925.03 of the Revised Code. A fine imposed under division (B)(4)
of this section shall not exceed whichever of the following is
applicable:
(a) The total value of any personal or real property in which
the offender has an interest and that was used in the course of,
intended for use in the course of, derived from, or realized
through conduct in violation of section 2925.03 of the Revised
Code, including any property that constitutes proceeds derived
from that offense;
(b) If the offender has no interest in any property of the
type described in division (B)(4)(a) of this section or if it is
not possible to ascertain whether the offender has an interest in
any property of that type in which the offender may have an
interest, the amount of the mandatory fine for the offense imposed
under division (B)(1) of this section or, if no mandatory fine is
imposed under division (B)(1) of this section, the amount of the
fine authorized for the level of the offense imposed under
division (A)(3) of this section.
(5) Prior to imposing a fine under division (B)(4) of this
section, the court shall determine whether the offender has an
interest in any property of the type described in division
(B)(4)(a) of this section. Except as provided in division (B)(6)
or (7) of this section, a fine that is authorized and imposed
under division (B)(4) of this section does not limit or affect the
imposition of the penalties and sanctions for a violation of
section 2925.03 of the Revised Code prescribed under those
sections or sections 2929.11 to 2929.18 of the Revised Code and
does not limit or affect a forfeiture of property in connection
with the offense as prescribed in Chapter 2981. of the Revised
Code.
(6) If the sum total of a mandatory fine amount imposed for a
first, second, or third degree felony violation of section 2925.03
of the Revised Code under division (B)(1) of this section plus the
amount of any fine imposed under division (B)(4) of this section
does not exceed the maximum statutory fine amount authorized for
the level of the offense under division (A)(3) of this section or
section 2929.31 of the Revised Code, the court may impose a fine
for the offense in addition to the mandatory fine and the fine
imposed under division (B)(4) of this section. The sum total of
the amounts of the mandatory fine, the fine imposed under division
(B)(4) of this section, and the additional fine imposed under
division (B)(6) of this section shall not exceed the maximum
statutory fine amount authorized for the level of the offense
under division (A)(3) of this section or section 2929.31 of the
Revised Code. The clerk of the court shall pay any fine that is
imposed under division (B)(6) of this section to the county,
township, municipal corporation, park district as created pursuant
to section 511.18 or 1545.04 of the Revised Code, or state law
enforcement agencies in this state that primarily were responsible
for or involved in making the arrest of, and in prosecuting, the
offender pursuant to division (F) of section 2925.03 of the
Revised Code.
(7) If the sum total of the amount of a mandatory fine
imposed for a first, second, or third degree felony violation of
section 2925.03 of the Revised Code plus the amount of any fine
imposed under division (B)(4) of this section exceeds the maximum
statutory fine amount authorized for the level of the offense
under division (A)(3) of this section or section 2929.31 of the
Revised Code, the court shall not impose a fine under division
(B)(6) of this section.
(8)(a) If an offender who is convicted of or pleads guilty to
a violation of section 2905.01, 2905.02, 2907.21, 2907.22, or
2923.32, division (A)(1) or (2) of section 2907.323, or division
(B)(1), (2), (3), (4), or (5) of section 2919.22 of the Revised
Code also is convicted of or pleads guilty to a specification of
the type described in section 2941.1422 of the Revised Code that
charges that the offender knowingly committed the offense in
furtherance of human trafficking, the sentencing court shall
sentence the offender to a financial sanction of restitution by
the offender to the victim or any survivor of the victim, with the
restitution including the costs of housing, counseling, and
medical and legal assistance incurred by the victim as a direct
result of the offense and the greater of the following:
(i) The gross income or value to the offender of the victim's
labor or services;
(ii) The value of the victim's labor as guaranteed under the
minimum wage and overtime provisions of the "Federal Fair Labor
Standards Act of 1938," 52 Stat. 1060, 20 U.S.C. 207, and state
labor laws.
(b) If a court imposing sentence upon an offender for a
felony is required to impose upon the offender a financial
sanction of restitution under division (B)(8)(a) of this section,
in addition to that financial sanction of restitution, the court
may sentence the offender to any other financial sanction or
combination of financial sanctions authorized under this section,
including a restitution sanction under division (A)(1) of this
section.
(C)(1) The offender shall pay reimbursements imposed upon the
offender pursuant to division (A)(5)(a) of this section to pay the
costs incurred by the department of rehabilitation and correction
in operating a prison or other facility used to confine offenders
pursuant to sanctions imposed under section 2929.14, 2929.142, or
2929.16 of the Revised Code to the treasurer of state. The
treasurer of state shall deposit the reimbursements in the
confinement cost reimbursement fund that is hereby created in the
state treasury. The department of rehabilitation and correction
shall use the amounts deposited in the fund to fund the operation
of facilities used to confine offenders pursuant to sections
2929.14, 2929.142, and 2929.16 of the Revised Code.
(2) Except as provided in section 2951.021 of the Revised
Code, the offender shall pay reimbursements imposed upon the
offender pursuant to division (A)(5)(a) of this section to pay the
costs incurred by a county pursuant to any sanction imposed under
this section or section 2929.16 or 2929.17 of the Revised Code or
in operating a facility used to confine offenders pursuant to a
sanction imposed under section 2929.16 of the Revised Code to the
county treasurer. The county treasurer shall deposit the
reimbursements in the sanction cost reimbursement fund that each
board of county commissioners shall create in its county treasury.
The county shall use the amounts deposited in the fund to pay the
costs incurred by the county pursuant to any sanction imposed
under this section or section 2929.16 or 2929.17 of the Revised
Code or in operating a facility used to confine offenders pursuant
to a sanction imposed under section 2929.16 of the Revised Code.
(3) Except as provided in section 2951.021 of the Revised
Code, the offender shall pay reimbursements imposed upon the
offender pursuant to division (A)(5)(a) of this section to pay the
costs incurred by a municipal corporation pursuant to any sanction
imposed under this section or section 2929.16 or 2929.17 of the
Revised Code or in operating a facility used to confine offenders
pursuant to a sanction imposed under section 2929.16 of the
Revised Code to the treasurer of the municipal corporation. The
treasurer shall deposit the reimbursements in a special fund that
shall be established in the treasury of each municipal
corporation. The municipal corporation shall use the amounts
deposited in the fund to pay the costs incurred by the municipal
corporation pursuant to any sanction imposed under this section or
section 2929.16 or 2929.17 of the Revised Code or in operating a
facility used to confine offenders pursuant to a sanction imposed
under section 2929.16 of the Revised Code.
(4) Except as provided in section 2951.021 of the Revised
Code, the offender shall pay reimbursements imposed pursuant to
division (A)(5)(a) of this section for the costs incurred by a
private provider pursuant to a sanction imposed under this section
or section 2929.16 or 2929.17 of the Revised Code to the provider.
(D) Except as otherwise provided in this division, a
financial sanction imposed pursuant to division (A) or (B) of this
section is a judgment in favor of the state or a political
subdivision in which the court that imposed the financial sanction
is located, and the offender subject to the financial sanction is
the judgment debtor. A financial sanction of reimbursement imposed
pursuant to division (A)(5)(a)(ii) of this section upon an
offender who is incarcerated in a state facility or a municipal
jail is a judgment in favor of the state or the municipal
corporation, and the offender subject to the financial sanction is
the judgment debtor. A financial sanction of reimbursement imposed
upon an offender pursuant to this section for costs incurred by a
private provider of sanctions is a judgment in favor of the
private provider, and the offender subject to the financial
sanction is the judgment debtor. A financial sanction of
restitution imposed pursuant to division (A)(1) or (B)(8) of this
section is an order in favor of the victim of the offender's
criminal act that can be collected through execution as described
in division (D)(1) of this section or through an order as
described in division (D)(2) of this section, and the offender
shall be considered for purposes of the collection as the judgment
debtor. Imposition of a financial sanction and execution on the
judgment does not preclude any other power of the court to impose
or enforce sanctions on the offender. Once the financial sanction
is imposed as a judgment or order under this division, the victim,
private provider, state, or political subdivision may bring an
action to do any of the following:
(1) Obtain execution of the judgment or order through any
available procedure, including:
(a) An execution against the property of the judgment debtor
under Chapter 2329. of the Revised Code;
(b) An execution against the person of the judgment debtor
under Chapter 2331. of the Revised Code;
(c) A proceeding in aid of execution under Chapter 2333. of
the Revised Code, including:
(i) A proceeding for the examination of the judgment debtor
under sections 2333.09 to 2333.12 and sections 2333.15 to 2333.27
of the Revised Code;
(ii) A proceeding for attachment of the person of the
judgment debtor under section 2333.28 of the Revised Code;
(iii) A creditor's suit under section 2333.01 of the Revised
Code.
(d) The attachment of the property of the judgment debtor
under Chapter 2715. of the Revised Code;
(e) The garnishment of the property of the judgment debtor
under Chapter 2716. of the Revised Code.
(2) Obtain an order for the assignment of wages of the
judgment debtor under section 1321.33 of the Revised Code.
(E) A court that imposes a financial sanction upon an
offender may hold a hearing if necessary to determine whether the
offender is able to pay the sanction or is likely in the future to
be able to pay it.
(F) Each court imposing a financial sanction upon an offender
under this section or under section 2929.32 of the Revised Code
may designate the clerk of the court or another person to collect
the financial sanction. The clerk or other person authorized by
law or the court to collect the financial sanction may enter into
contracts with one or more public agencies or private vendors for
the collection of, amounts due under the financial sanction
imposed pursuant to this section or section 2929.32 of the Revised
Code. Before entering into a contract for the collection of
amounts due from an offender pursuant to any financial sanction
imposed pursuant to this section or section 2929.32 of the Revised
Code, a court shall comply with sections 307.86 to 307.92 of the
Revised Code.
(G) If the court imposes one or more financial sanctions in
addition to restitution, any amounts paid by the offender shall be
credited first to restitution.
(H) If a court that imposes a financial sanction under
division (A) or (B) of this section finds that an offender
satisfactorily has completed all other sanctions imposed upon the
offender and that all restitution that has been ordered has been
paid as ordered, the court may suspend any financial sanctions
imposed pursuant to this section or section 2929.32 of the Revised
Code that have not been paid.
(H)(I) No financial sanction imposed under this section or
section 2929.32 of the Revised Code shall preclude a victim from
bringing a civil action against the offender.
Sec. 2929.20. (A) As used in this section:
(1)(a) Except as provided in division (A)(1)(b) of this
section, "eligible offender" means any person serving a stated
prison term of ten years or less when either of the following
applies:
(i) The stated prison term does not include a mandatory
prison term.
(ii) The stated prison term includes a mandatory prison term,
and the person has served the mandatory prison term.
(b) "Eligible offender" does not include any person who is
serving a stated prison term for any of the following criminal
offenses that was a felony and was committed while the person held
a public office in this state:
(i) A violation of section 2921.02, 2921.03, 2921.05,
2921.31, 2921.32, 2921.41, 2921.42, or 2923.32 of the Revised
Code;
(ii) A violation of section 2913.42, 2921.04, 2921.11, or
2921.12 of the Revised Code, when the conduct constituting the
violation was related to the duties of the offender's public
office or to the offender's actions as a public official holding
that public office;
(iii) A violation of an existing or former municipal
ordinance or law of this or any other state or the United States
that is substantially equivalent to any violation listed in
division (A)(1)(b)(i) of this section;
(iv) A violation of an existing or former municipal ordinance
or law of this or any other state or the United States that is
substantially equivalent to any violation listed in division
(A)(1)(b)(ii) of this section, when the conduct constituting the
violation was related to the duties of the offender's public
office or to the offender's actions as a public official holding
that public office;
(v) A conspiracy to commit, attempt to commit, or complicity
in committing any offense listed in division (A)(1)(b)(i) or
described in division (A)(1)(b)(iii) of this section;
(vi) A conspiracy to commit, attempt to commit, or complicity
in committing any offense listed in division (A)(1)(b)(ii) or
described in division (A)(1)(b)(iv) of this section, if the
conduct constituting the offense that was the subject of the
conspiracy, that would have constituted the offense attempted, or
constituting the offense in which the offender was complicit was
or would have been related to the duties of the offender's public
office or to the offender's actions as a public official holding
that public office.
(2) "Public office" means any elected federal, state, or
local government office in this state.
(B) On the motion of an eligible offender or upon its own
motion, the sentencing court may reduce the eligible offender's
stated prison term through a judicial release under this section.
(C) An eligible offender may file a motion for judicial
release with the sentencing court within the following applicable
periods:
(1) If the stated prison term is less than two years, the
eligible offender may file the motion not earlier than thirty days
after the offender is delivered to a state correctional
institution or, if the prison term includes a mandatory prison
term or terms, not earlier than thirty days after the expiration
of all mandatory prison terms.
(2) If the stated prison term is at least two years but less
than five years, the eligible offender may file the motion not
earlier than one hundred eighty days after the offender is
delivered to a state correctional institution or, if the prison
term includes a mandatory prison term or terms, not earlier than
one hundred eighty days after the expiration of all mandatory
prison terms.
(3) If the stated prison term is five years or more but not
more than ten years, the eligible offender may file the motion not
earlier than five years after the eligible offender is delivered
to a state correctional institution or, if the prison term
includes a mandatory prison term or terms, not earlier than five
years after the expiration of all mandatory prison terms.
(D) Upon receipt of a timely motion for judicial release
filed by an eligible offender under division (C) of this section
or upon the sentencing court's own motion made within the
appropriate time specified in that division, the court may deny
the motion without a hearing or schedule a hearing on the motion.
The court shall not grant the motion without a hearing. If a court
denies a motion without a hearing, the court later may consider
judicial release for that eligible offender on a subsequent motion
filed by that eligible offender unless the court denies the motion
with prejudice. If a court denies a motion with prejudice, the
court may later consider judicial release on its own motion. If a
court denies a motion after a hearing, the court shall not
consider a subsequent motion for that eligible offender. The court
shall hold only one hearing for any eligible offender.
A hearing under this section shall be conducted in open court
within sixty days after the motion is filed, provided that the
court may delay the hearing for one hundred eighty additional
days. If the court holds a hearing, the court shall enter a ruling
on the motion within ten days after the hearing. If the court
denies the motion without a hearing, the court shall enter its
ruling on the motion within sixty days after the motion is filed.
(E) If a court schedules a hearing under division (D) of this
section, the court shall notify the eligible offender and the head
of the state correctional institution in which the eligible
offender is confined prior to the hearing. The head of the state
correctional institution immediately shall notify the appropriate
person at the department of rehabilitation and correction of the
hearing, and the department within twenty-four hours after receipt
of the notice, shall post on the database it maintains pursuant to
section 5120.66 of the Revised Code the offender's name and all of
the information specified in division (A)(1)(c)(i) of that
section. If the court schedules a hearing for judicial release,
the court promptly shall give notice of the hearing to the
prosecuting attorney of the county in which the eligible offender
was indicted. Upon receipt of the notice from the court, the
prosecuting attorney shall notify the victim of the offense or the
victim's representative pursuant to section 2930.16 of the Revised
Code.
(F) Upon an offender's successful completion of
rehabilitative activities, the head of the state correctional
institution may notify the sentencing court of the successful
completion of the activities.
(G) Prior to the date of the hearing on a motion for judicial
release under this section, the head of the state correctional
institution in which the eligible offender is confined shall send
to the court a report on the eligible offender's conduct in the
institution and in any institution from which the eligible
offender may have been transferred. The report shall cover the
eligible offender's participation in school, vocational training,
work, treatment, and other rehabilitative activities and any
disciplinary action taken against the eligible offender. The
report shall be made part of the record of the hearing.
(H) If the court grants a hearing on a motion for judicial
release under this section, the eligible offender shall attend the
hearing if ordered to do so by the court. Upon receipt of a copy
of the journal entry containing the order, the head of the state
correctional institution in which the eligible offender is
incarcerated shall deliver the eligible offender to the sheriff of
the county in which the hearing is to be held. The sheriff shall
convey the eligible offender to and from the hearing.
(I) At the hearing on a motion for judicial release under
this section, the court shall afford the eligible offender and the
eligible offender's attorney an opportunity to present written
and, if present, oral information relevant to the motion. The
court shall afford a similar opportunity to the prosecuting
attorney, the victim or the victim's representative, as defined in
section 2930.01 of the Revised Code, and any other person the
court determines is likely to present additional relevant
information. The court shall consider any statement of a victim or
any other harmed person made pursuant to section 2930.14 or
2930.17 of the Revised Code, any victim impact statement prepared
pursuant to section 2947.051 of the Revised Code, and any report
made under division (G) of this section. The court may consider
any written statement of any person submitted to the court
pursuant to division (L) of this section. After ruling on the
motion, the court shall notify the victim of the ruling in
accordance with sections 2930.03 and 2930.16 of the Revised Code.
(J)(1) A court shall not grant a judicial release under this
section to an eligible offender who is imprisoned for a felony of
the first or second degree, or to an eligible offender who
committed an offense under Chapter 2925. or 3719. of the Revised
Code and for whom there was a presumption under section 2929.13 of
the Revised Code in favor of a prison term, unless the court, with
reference to factors under section 2929.12 of the Revised Code,
finds both of the following:
(a) That a sanction other than a prison term would adequately
punish the offender and protect the public from future criminal
violations by the eligible offender because the applicable factors
indicating a lesser likelihood of recidivism outweigh the
applicable factors indicating a greater likelihood of recidivism;
(b) That a sanction other than a prison term would not demean
the seriousness of the offense because factors indicating that the
eligible offender's conduct in committing the offense was less
serious than conduct normally constituting the offense outweigh
factors indicating that the eligible offender's conduct was more
serious than conduct normally constituting the offense.
(2) A court that grants a judicial release to an eligible
offender under division (J)(1) of this section shall specify on
the record both findings required in that division and also shall
list all the factors described in that division that were
presented at the hearing.
(K) If the court grants a motion for judicial release under
this section, the court shall order the release of the eligible
offender, shall place the eligible offender under an appropriate
community control sanction, under appropriate conditions, and
under the supervision of the department of probation serving the
court and shall reserve the right to reimpose the sentence that it
reduced if the offender violates the sanction. If the court
reimposes the reduced sentence, it may do so either concurrently
with, or consecutive to, any new sentence imposed upon the
eligible offender as a result of the violation that is a new
offense. The period of community control shall be no longer than
five years. The court, in its discretion, may reduce the period of
community control by the amount of time the eligible offender
spent in jail or prison for the offense and in prison. If the
court made any findings pursuant to division (J)(1) of this
section, the court shall serve a copy of the findings upon counsel
for the parties within fifteen days after the date on which the
court grants the motion for judicial release.
If the court grants a motion for judicial release, the court
shall notify the appropriate person at the department of
rehabilitation and correction, and the department shall post
notice of the release on the database it maintains pursuant to
section 5120.66 of the Revised Code.
(L) In addition to and independent of the right of a victim
to make a statement pursuant to section 2930.14, 2930.17, or
2946.051 of the Revised Code and any right of a person to present
written information or make a statement pursuant to division (I)
of this section, any person may submit to the court, at any time
prior to the hearing on the offender's motion for judicial
release, a written statement concerning the effects of the
offender's crime or crimes, the circumstances surrounding the
crime or crimes, the manner in which the crime or crimes were
perpetrated, and the person's opinion as to whether the offender
should be released.
Sec. 2929.22. (A) Unless a mandatory jail term is required
to be imposed by division (G) of section 1547.99, division (B) of
section 4510.14, division (G) of section 4511.19 of the Revised
Code, or any other provision of the Revised Code a court that
imposes a sentence under this chapter upon an offender for a
misdemeanor or minor misdemeanor has discretion to determine the
most effective way to achieve the purposes and principles of
sentencing set forth in section 2929.21 of the Revised Code.
Unless a specific sanction is required to be imposed or is
precluded from being imposed by the section setting forth an
offense or the penalty for an offense or by any provision of
sections 2929.23 to 2929.28 of the Revised Code, a court that
imposes a sentence upon an offender for a misdemeanor may impose
on the offender any sanction or combination of sanctions under
sections 2929.24 to 2929.28 of the Revised Code. The court shall
not impose a sentence that imposes an unnecessary burden on local
government resources.
(B)(1) In determining the appropriate sentence for a
misdemeanor, the court shall consider all of the following
factors:
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of
persistent criminal activity and that the offender's character and
condition reveal a substantial risk that the offender will commit
another offense;
(c) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender's history,
character, and condition reveal a substantial risk that the
offender will be a danger to others and that the offender's
conduct has been characterized by a pattern of repetitive,
compulsive, or aggressive behavior with heedless indifference to
the consequences;
(d) Whether the victim's youth, age, disability, or other
factor made the victim particularly vulnerable to the offense or
made the impact of the offense more serious;
(e) Whether the offender is likely to commit future crimes in
general, in addition to the circumstances described in divisions
(B)(1)(b) and (c) of this section.
(2) In determining the appropriate sentence for a
misdemeanor, in addition to complying with division (B)(1) of this
section, the court may consider any other factors that are
relevant to achieving the purposes and principles of sentencing
set forth in section 2929.21 of the Revised Code.
(C) Before imposing a jail term as a sentence for a
misdemeanor, a court shall consider the appropriateness of
imposing a community control sanction or a combination of
community control sanctions under sections 2929.25, 2929.26,
2929.27, and 2929.28 of the Revised Code. A court may impose the
longest jail term authorized under section 2929.24 of the Revised
Code only upon offenders who commit the worst forms of the offense
or upon offenders whose conduct and response to prior sanctions
for prior offenses demonstrate that the imposition of the longest
jail term is necessary to deter the offender from committing a
future crime.
(D)(1) A sentencing court shall consider any relevant oral or
written statement made by the victim, any other harmed person
under section 2930.14 of the Revised Code, the defendant, the
defense attorney, or the prosecuting authority regarding
sentencing for a misdemeanor. This division does not create any
rights to notice other than those rights authorized by Chapter
2930. of the Revised Code.
(2) At the time of sentencing for a misdemeanor or as soon as
possible after sentencing, the court shall notify the victim of
the offense of the victim's right to file an application for an
award of reparations pursuant to sections 2743.51 to 2743.72 of
the Revised Code.
Sec. 2929.28. (A) In addition to imposing court costs
pursuant to section 2947.23 of the Revised Code, the court
imposing a sentence upon an offender for a misdemeanor, including
a minor misdemeanor, may sentence the offender to any financial
sanction or combination of financial sanctions authorized under
this section and if the offender is being sentenced for a crime as
defined in section 2930.01 of the Revised Code shall sentence the
offender to make restitution pursuant to this section and section
2929.181 of the Revised Code. If the court, in its discretion or
as required by this section, imposes one or more financial
sanctions, the financial sanctions that may be imposed pursuant to
this section include, but are not limited to, the following:
(1) Unless the misdemeanor offense is a minor misdemeanor or
could be disposed of by the traffic violations bureau serving the
court under Traffic Rule 13, restitution by the offender to the
victim of the offender's crime or any survivor of the victim, in
an amount based on the victim's economic loss. The court may not
impose restitution as a sanction pursuant to this division if the
offense is a minor misdemeanor or could be disposed of by the
traffic violations bureau serving the court under Traffic Rule 13.
If the court requires restitution, the court shall order that the
restitution be made to the victim in open court or to the adult
probation department that serves the jurisdiction or the clerk of
the court on behalf of the victim.
If the court imposes restitution, the court shall determine
the amount of restitution to be paid by the offender. If the court
imposes restitution, the court may base the amount of restitution
it orders on an amount recommended by the victim, the offender, a
presentence investigation report, estimates or receipts indicating
the cost of repairing or replacing property, and other
information, provided that the The prosecutor, the prosecutor's
designee, or the probation department upon agreement with the
prosecutor, shall, and the offender may, present evidence relevant
to the determination of the amount of restitution. The amount the
court orders as restitution shall not exceed the amount of the
economic loss suffered by the victim as a direct and proximate
result of the commission of the offense. If the court decides to
or is required to impose restitution, the court shall hold an
evidentiary hearing on restitution if the offender, victim, or
survivor disputes the amount of restitution. If the court holds an
evidentiary hearing, at the hearing the victim or survivor has the
burden to prove by a preponderance of the evidence the amount of
restitution sought from the offender.
Whether or not the court
holds a hearing, the court shall determine the amount of full
restitution by a preponderance of the evidence.
All restitution payments shall be credited against any
recovery of economic loss in a civil action brought by the victim
or any survivor of the victim against the offender.
If the court imposes restitution, the court may order that
the offender pay a surcharge, of not more than five per cent of
the amount of the restitution otherwise ordered, to the entity
responsible for collecting and processing restitution payments.
The victim or survivor may request that the prosecutor in the
case file a motion, or the offender may file a motion, for
modification of the payment terms of any restitution ordered. If
the court grants the motion, it may modify the payment terms as it
determines appropriate.
(2) A fine of the type described in divisions (A)(2)(a) and
(b) of this section payable to the appropriate entity as required
by law:
(a) A fine in the following amount:
(i) For a misdemeanor of the first degree, not more than one
thousand dollars;
(ii) For a misdemeanor of the second degree, not more than
seven hundred fifty dollars;
(iii) For a misdemeanor of the third degree, not more than
five hundred dollars;
(iv) For a misdemeanor of the fourth degree, not more than
two hundred fifty dollars;
(v) For a minor misdemeanor, not more than one hundred fifty
dollars.
(b) A state fine or cost as defined in section 2949.111 of
the Revised Code.
(3)(a) Reimbursement by the offender of any or all of the
costs of sanctions incurred by the government, including, but not
limited to, the following:
(i) All or part of the costs of implementing any community
control sanction, including a supervision fee under section
2951.021 of the Revised Code;
(ii) All or part of the costs of confinement in a jail or
other residential facility, including, but not limited to, a per
diem fee for room and board, the costs of medical and dental
treatment, and the costs of repairing property damaged by the
offender while confined;
(iii) All or part of the cost of purchasing and using an
immobilizing or disabling device, including a certified ignition
interlock device, or a remote alcohol monitoring device that a
court orders an offender to use under section 4510.13 of the
Revised Code.
(b) The amount of reimbursement ordered under division
(A)(3)(a) of this section shall not exceed the total amount of
reimbursement the offender is able to pay and shall not exceed the
actual cost of the sanctions. The court may collect any amount of
reimbursement the offender is required to pay under that division.
If the court does not order reimbursement under that division,
confinement costs may be assessed pursuant to a repayment policy
adopted under section 2929.37 of the Revised Code. In addition,
the offender may be required to pay the fees specified in section
2929.38 of the Revised Code in accordance with that section.
(B) If the court determines a hearing is necessary, the court
may hold a hearing to determine whether the offender is able to
pay the financial sanction imposed pursuant to this section or
court costs or is likely in the future to be able to pay the
sanction or costs.
If the court determines that the offender is indigent and
unable to pay the financial sanction or court costs, the court
shall consider imposing and may impose a term of community service
under division (A) of section 2929.27 of the Revised Code in lieu
of imposing a financial sanction or court costs. If the court does
not determine that the offender is indigent, the court may impose
a term of community service under division (A) of section 2929.27
of the Revised Code in lieu of or in addition to imposing a
financial sanction under this section and in addition to imposing
court costs except that the court may not impose a term of
community service in lieu of restitution for a crime as defined in
section 2930.01 of the Revised Code. The court may order community
service for a minor misdemeanor pursuant to division (C) of
section 2929.27 of the Revised Code in lieu of or in addition to
imposing a financial sanction under this section and in addition
to imposing court costs. If a person fails to pay a financial
sanction or court costs, the court may order community service in
lieu of the financial sanction or court costs.
(C)(1) The offender shall pay reimbursements imposed upon the
offender pursuant to division (A)(3) of this section to pay the
costs incurred by a county pursuant to any sanction imposed under
this section or section 2929.26 or 2929.27 of the Revised Code or
in operating a facility used to confine offenders pursuant to a
sanction imposed under section 2929.26 of the Revised Code to the
county treasurer. The county treasurer shall deposit the
reimbursements in the county's general fund. The county shall use
the amounts deposited in the fund to pay the costs incurred by the
county pursuant to any sanction imposed under this section or
section 2929.26 or 2929.27 of the Revised Code or in operating a
facility used to confine offenders pursuant to a sanction imposed
under section 2929.26 of the Revised Code.
(2) The offender shall pay reimbursements imposed upon the
offender pursuant to division (A)(3) of this section to pay the
costs incurred by a municipal corporation pursuant to any sanction
imposed under this section or section 2929.26 or 2929.27 of the
Revised Code or in operating a facility used to confine offenders
pursuant to a sanction imposed under section 2929.26 of the
Revised Code to the treasurer of the municipal corporation. The
treasurer shall deposit the reimbursements in the municipal
corporation's general fund. The municipal corporation shall use
the amounts deposited in the fund to pay the costs incurred by the
municipal corporation pursuant to any sanction imposed under this
section or section 2929.26 or 2929.27 of the Revised Code or in
operating a facility used to confine offenders pursuant to a
sanction imposed under section 2929.26 of the Revised Code.
(3) The offender shall pay reimbursements imposed pursuant to
division (A)(3) of this section for the costs incurred by a
private provider pursuant to a sanction imposed under this section
or section 2929.26 or 2929.27 of the Revised Code to the provider.
(D) Except as otherwise provided in this division, a
financial sanction imposed under division (A) of this section is a
judgment in favor of the state or the political subdivision that
operates the court that imposed the financial sanction, and the
offender subject to the financial sanction is the judgment debtor.
A financial sanction of reimbursement imposed pursuant to division
(A)(3)(a)(i) of this section upon an offender is a judgment in
favor of the entity administering the community control sanction,
and the offender subject to the financial sanction is the judgment
debtor. A financial sanction of reimbursement imposed pursuant to
division (A)(3)(a)(ii) of this section upon an offender confined
in a jail or other residential facility is a judgment in favor of
the entity operating the jail or other residential facility, and
the offender subject to the financial sanction is the judgment
debtor. A financial sanction of restitution imposed pursuant to
division (A)(1) of this section is an order in favor of the victim
of the offender's criminal act that can be collected through
execution as described in division (D)(1) of this section or
through an order as described in division (D)(2) of this section
and the offender shall be considered for purposes of the
collection as the judgment debtor.
Once the financial sanction is imposed as a judgment or order
under this division, the victim, private provider, state, or
political subdivision may bring an action to do any of the
following:
(1) Obtain execution of the judgment or order through any
available procedure, including any of the procedures identified in
divisions (D)(1)(a) to (e) of section 2929.18 of the Revised Code.
(2) Obtain an order for the assignment of wages of the
judgment debtor under section 1321.33 of the Revised Code.
(E) The civil remedies authorized under division (D) of this
section for the collection of the financial sanction supplement,
but do not preclude, enforcement of the criminal sentence.
(F) Each court imposing a financial sanction upon an offender
under this section may designate the clerk of the court or another
person to collect the financial sanction. The clerk, or another
person authorized by law or the court to collect the financial
sanction may do the following:
(1) Enter into contracts with one or more public agencies or
private vendors for the collection of amounts due under the
sanction. Before entering into a contract for the collection of
amounts due from an offender pursuant to any financial sanction
imposed pursuant to this section, a court shall comply with
sections 307.86 to 307.92 of the Revised Code.
(2) Permit payment of all or any portion of the sanction in
installments, by financial transaction device if the court is a
county court or a municipal court operated by a county, by credit
or debit card or by another electronic transfer if the court is a
municipal court not operated by a county, or by any other
reasonable method, in any time, and on any terms that court
considers just, except that the maximum time permitted for payment
shall not exceed five years. If the court is a county court or a
municipal court operated by a county, the acceptance of payments
by any financial transaction device shall be governed by the
policy adopted by the board of county commissioners of the county
pursuant to section 301.28 of the Revised Code. If the court is a
municipal court not operated by a county, the clerk may pay any
fee associated with processing an electronic transfer out of
public money or may charge the fee to the offender.
(3) To defray administrative costs, charge a reasonable fee
to an offender who elects a payment plan rather than a lump sum
payment of any financial sanction.
(G) If the court imposes one or more financial sanctions in
addition to restitution, any amounts paid by the offender shall be
credited first to restitution.
(H) No financial sanction imposed under this section shall
preclude a victim from bringing a civil action against the
offender.
Sec. 2929.281. (A)(1) If the defendant is convicted of or
pleads guilty to an offense in a criminal proceeding in which
restitution is a mandatory part of the sentence imposed on the
defendant, the court, on motion of the prosecuting attorney or
other prosecutor, may enter a restraining order or injunction,
require the execution of a performance bond, or take any other
action to preserve the availability of property that may be
necessary to satisfy an anticipated restitution order if the
prosecuting attorney demonstrates by a preponderance of the
evidence that there is a substantial likelihood that the property
with respect to which the order is sought will be necessary to
satisfy an anticipated restitution order.
(2) The court may issue an order under division (A)(1) of
this section without notice to the defendant if the court
determines that notice would jeopardize the availability of the
property to satisfy a judgment of restitution. If the court issues
an order under division (A)(1) of this section without notice to
the defendant, the court shall promptly notify the defendant of
the order and shall schedule a hearing on the motion to be held as
soon as practicable but not more than ten days after the order is
issued.
(3) An order issued under division (A)(1) of this section
shall not remain in effect for longer than ninety days unless it
is renewed upon motion of the prosecuting attorney.
(B) In a criminal proceeding in which restitution is a
mandatory part of the sentence imposed on an offender, the victim
may request that no restitution or less than full restitution be
ordered or that the offender make restitution by means other than
the payment of money. The court shall consider but is not required
to grant a request made by a victim under this division.
(C) In determining the amount of restitution under this
section, the court, subject to division (B) of this section,
shall order full restitution for any economic loss suffered by the
victim. The court shall not consider the defendant's ability to
pay restitution. The amount of restitution shall not be reduced by
any payments to the victim for economic or other loss made or due
under a policy of insurance or governmental program. If, at the
time the court determines the amount of restitution, an insurance
company or governmental entity has made payments to the victim for
losses suffered as a result of the offense, the amounts of those
payments that are included in restitution shall be paid to the
insurance company or governmental entity.
(D) The court may order that restitution be made by a single
lump sum payment, partial payments at specified intervals, in-kind
payments, or a combination of payments at specified intervals and
in-kind payments. The length of time over which scheduled payments
are established shall be the shortest time in which full payment
reasonably can be made. In-kind payments may be in the form of the
return of property, replacement of property, or if the victim
agrees services rendered to the victim or a person or organization
other than the victim. The court may enter a restraining order or
injunction, require the execution of a satisfactory performance
bond, or take any other action to ensure payment of restitution.
(E) Any money owed by the state or by a political subdivision
of the state to an offender who is required to make restitution
under this section, including any tax refund owed to the offender,
shall be assigned first to the discharge of the offender's
outstanding restitution obligation.
(F) If an offender is required to make restitution under this
section in the form of monetary payments to more than one victim,
the offender shall make the payments to the victims in the
following order of priority:
(2) Nonprofit organizations;
(4) Governmental entities.
(G) A court that imposes restitution on an offender as part
of the offender's sentence under this section shall not suspend
that part of the offender's sentence. If the court suspends any
other part of the offender's sentence, the offender's payment of
restitution in accordance with the sentence shall be a condition
of the suspended part of the sentence.
(H) A restitution obligation imposed pursuant to this section
is not subject to discharge in bankruptcy or to any other
statutory or common-law proceeding for relief against creditors,
except to the extent required by federal law.
(I) If money or property that is received pursuant to a
sentence of restitution cannot be paid to the victim or the
victim's estate, the person or agency that receives the money or
property shall pay or deliver it to the reparations fund created
by section 2743.191 of the Revised Code or to a crime victim
service organization as defined in section 2930.01 of the Revised
Code.
Sec. 2930.01. As used in this chapter:
(A) "Crime" means any of the following:
(2) A violation of section 2903.05, 2903.06, 2903.13,
2903.21, 2903.211, 2903.22, 2907.06, 2919.25, or 2921.04 of the
Revised Code, a violation of section 2903.07 of the Revised Code
as it existed prior to March 23, 2000, or a violation of a
substantially equivalent municipal ordinance;
(3) A violation of division (A) or (B) of section 4511.19,
division (A) or (B) of section 1547.11, or division (A)(3) of
section 4561.15 of the Revised Code or of a municipal ordinance
substantially similar to any of those divisions that is the
proximate cause of a vehicle, streetcar, trackless trolley,
aquatic device, or aircraft accident in which the victim receives
injuries for which the victim receives medical treatment either at
the scene of the accident by emergency medical services personnel
or at a hospital, ambulatory care facility, physician's office,
specialist's office, or other medical care facility.
(4) A motor vehicle accident to which both of the following
apply:
(a) The motor vehicle accident is caused by a violation of a
provision of the Revised Code that is a misdemeanor of the first
degree or higher.
(b) As a result of the motor vehicle accident, the victim
receives injuries for which the victim receives medical treatment
either at the scene of the accident by emergency medical services
personnel or at a hospital, ambulatory care facility, physician's
office, specialist's office, or other medical care facility.
(B) "Custodial agency" means one of the following:
(1) The entity that has custody of a defendant or an alleged
juvenile offender who is incarcerated for a crime, is under
detention for the commission of a specified delinquent act, or who
is detained after a finding of incompetence to stand trial or not
guilty by reason of insanity relative to a crime, including any of
the following:
(a) The department of rehabilitation and correction or the
adult parole authority;
(c) The entity that administers a jail, as defined in section
2929.01 of the Revised Code;
(d) The entity that administers a community-based
correctional facility and program or a district community-based
correctional facility and program;
(e) The department of mental health or other entity to which
a defendant found incompetent to stand trial or not guilty by
reason of insanity is committed.
(2) The entity that has custody of an alleged juvenile
offender pursuant to an order of disposition of a juvenile court,
including the department of youth services or a school, camp,
institution, or other facility operated for the care of delinquent
children.
(C) "Defendant" means a person who is alleged to be the
perpetrator of a crime in a police report or in a complaint,
indictment, or information that charges the commission of a crime
and that provides the basis for the criminal prosecution and
subsequent proceedings to which this chapter makes reference.
(D) "Member of the victim's family" means a spouse, child,
stepchild, sibling, parent, stepparent, grandparent, or other
relative of a victim but does not include a person who is charged
with, convicted of, or adjudicated to be a delinquent child for
the crime or specified delinquent act against the victim or
another crime or specified delinquent act arising from the same
conduct, criminal episode, or plan.
(E) "Prosecutor" means one of the following:
(1) With respect to a criminal case, it has the same meaning
as in section 2935.01 of the Revised Code and also includes the
attorney general and, when appropriate, the employees of any
person listed in section 2935.01 of the Revised Code or of the
attorney general.
(2) With respect to a delinquency proceeding, it includes any
person listed in division (C) of section 2935.01 of the Revised
Code or an employee of a person listed in that division who
prosecutes a delinquency proceeding.
(F) "Public agency" means an office, agency, department,
bureau, or other governmental entity of the state or of a
political subdivision of the state.
(G) "Public official" has the same meaning as in section
2921.01 of the Revised Code.
(H) "Victim" means either of the following:
(1) A person who is identified as the victim of a crime or
specified delinquent act in a police report or in a complaint,
indictment, or information that charges the commission of a crime
and that provides the basis for the criminal prosecution or
delinquency proceeding and subsequent proceedings to which this
chapter makes reference.
(2) A person who receives injuries as a result of a vehicle,
streetcar, trackless trolley, aquatic device, or aircraft accident
that is proximately caused by a violation described in division
(A)(3) of this section or a motor vehicle accident that is
proximately caused by a violation described in division (A)(4) of
this section and who receives medical treatment as described in
division (A)(3) or (4) of this section, whichever is applicable.
(I) "Victim's representative" means a member of the victim's
family or another person who pursuant to the authority of section
2930.02 of the Revised Code exercises the rights of a victim under
this chapter.
(J) "Court" means a court of common pleas, juvenile court,
municipal court, or county court.
(K) "Delinquency proceeding" means all proceedings in a
juvenile court that are related to a case in which a complaint has
been filed alleging that a child is a delinquent child.
(L) "Case" means a delinquency proceeding and all related
activity or a criminal prosecution and all related activity.
(M) The "defense" means the defense against criminal charges
in a criminal prosecution or the defense against a delinquent
child complaint in a delinquency proceeding.
(N) The "prosecution" means the prosecution of criminal
charges in a criminal prosecution or the prosecution of a
delinquent child complaint in a delinquency proceeding.
(O) "Specified delinquent act" means any of the following:
(1) An act committed by a child that if committed by an adult
would be a felony;
(2) An act committed by a child that is a violation of a
section listed in division (A)(1) or (2) of this section or is a
violation of a substantially equivalent municipal ordinance;
(3) An act committed by a child that is described in division
(A)(3) or (4) of this section.
(P)(1) "Alleged juvenile offender" means a child who is
alleged to have committed a specified delinquent act in a police
report or in a complaint in juvenile court that charges the
commission of a specified delinquent act and that provides the
basis for the delinquency proceeding and all subsequent
proceedings to which this chapter makes reference.
(2) As used in divisions (O) and (P)(1) of this section,
"child" has the same meaning as in section 2151.011 of the Revised
Code.
(Q) "Motor vehicle accident" means any accident involving a
motor vehicle.
(R) "Motor vehicle" has the same meaning as in section
4509.01 of the Revised Code.
(S) "Aircraft" has the same meaning as in section 4561.01 of
the Revised Code.
(T) "Aquatic device" means any vessel, or any water skis,
aquaplane, or similar device.
(U) "Vehicle," "streetcar," and "trackless trolley" have the
same meanings as in section 4511.01 of the Revised Code.
(V) "Vehicle, streetcar, trackless trolley, aquatic device,
or aircraft accident" means any accident involving a vehicle,
streetcar, trackless trolley, aquatic device, or aircraft.
(W) "Vessel" has the same meaning as in section 1547.01 of
the Revised Code.
(X) "Victim advocate" means a person from a crime victim
service organization who provides support and assistance for a
victim of a crime during criminal and administrative proceedings
and recovery efforts related to the crime.
(Y) "Crime victim service organization" means any
organization that is not organized for profit and that is
organized and operated to provide, or to contribute to the support
of organizations or institutions that are organized and operated
to provide, services and assistance for victims of crime.
Sec. 2930.02. (A) If a victim is a minor or is
incapacitated, incompetent, or deceased, or if the victim chooses
to designate another person, including, but not limited to, a
member of a victim's family or
another a victim advocate from a
crime victim service organization, that person may exercise the
rights of the victim under this chapter as the victim's
representative.
If more than one person seeks to act as the victim's
representative for a particular victim, the court in which the
criminal prosecution or delinquency proceeding is held shall
designate one of those persons as the victim's representative. If
a victim does not want to have anyone act as the victim's
representative, the court shall order that only the victim may
exercise the rights of a victim under this chapter.
(B) If pursuant to division (A) of this section a victim's
representative is to exercise the rights of a victim, the victim
or victim's representative shall notify the prosecutor or, if it
is a delinquency proceeding and a prosecutor is not involved in
the case, shall notify the court that the victim's representative
is to act for the victim. When a victim or victim's representative
has so notified the prosecutor or the court, all notice under this
chapter shall be sent only to the victim's representative, all
rights under this chapter shall be granted only to the victim's
representative, and all references in this chapter to a victim
shall be interpreted as being references to the victim's
representative unless the victim informs the notifying authority
that the victim also wishes to receive the notices or exercise the
rights. If division (B) of section 2930.03 of the Revised Code
requires a victim to make a request in order to receive any notice
of a type described in this division and if a victim's
representative is to exercise the rights of the victim, the
victim's representative shall make the request.
Sec. 2930.06. (A) The prosecutor in a case, to the extent
practicable, shall confer with the victim in the case before
pretrial diversion is granted to the defendant or alleged juvenile
offender in the case, before amending or dismissing an indictment,
information, or complaint against that defendant or alleged
juvenile offender, before agreeing to a negotiated plea for that
defendant or alleged juvenile offender, before a trial of that
defendant by judge or jury, or before the juvenile court conducts
an adjudicatory hearing for that alleged juvenile offender. If the
juvenile court disposes of a case prior to the prosecutor's
involvement in the case, the court or a court employee shall
notify the victim in the case that the alleged juvenile offender
will be granted pretrial diversion, the complaint against that
alleged juvenile offender will be amended or dismissed, or the
court will conduct an adjudicatory hearing for that alleged
juvenile offender. If the prosecutor fails to confer with the
victim at any of those times, the court, if informed of the
failure, shall note on the record the failure and the prosecutor's
reasons for the failure. A prosecutor's failure to confer with a
victim as required by this division and a court's failure to
provide the notice as required by this division do not affect the
validity of an agreement between the prosecutor and the defendant
or alleged juvenile offender in the case, a pretrial diversion of
the defendant or alleged juvenile offender, an amendment or
dismissal of an indictment, information, or complaint filed
against the defendant or alleged juvenile offender, a plea entered
by the defendant or alleged juvenile defender, an admission
entered by the defendant or alleged juvenile offender, or any
other disposition in the case. A court shall not dismiss a
criminal complaint, charge, information, or indictment or a
delinquent child complaint solely at the request of the victim and
over the objection of the prosecuting attorney, village solicitor,
city director of law, or other chief legal officer responsible for
the prosecution of the case.
(B) After a prosecution in a case has been commenced, the
prosecutor or a designee of the prosecutor other than a court or
court employee, to the extent practicable, promptly shall give the
victim all of the following information, except that, if the
juvenile court disposes of a case prior to the prosecutor's
involvement in the case, the court or a court employee, to the
extent practicable, promptly shall give the victim all of the
following information:
(1) The name of the crime or specified delinquent act with
which the defendant or alleged juvenile offender in the case has
been charged and the name of the defendant or alleged juvenile
offender;
(2) The file number of the case;
(3) A brief statement regarding the procedural steps in a
criminal prosecution or delinquency proceeding involving a crime
or specified delinquent act similar to the crime or specified
delinquent act with which the defendant or alleged juvenile
offender has been charged and the right of the victim to be
present during all proceedings held throughout the prosecution of
the case;
(4) A summary of the rights of a victim under this chapter;
(5) Procedures the victim or the prosecutor may follow if the
victim becomes subject to threats or intimidation by the
defendant, alleged juvenile offender, or any other person;
(6) The name and business telephone number of a person to
contact for further information with respect to the case;
(7) The right of the victim to have a victim's representative
exercise the victim's rights under this chapter in accordance with
section 2930.02 of the Revised Code and the procedure by which a
victim's representative may be designated;
(8) Notice that any notification under division (C) of this
section, sections 2930.07 to 2930.19, and section 5139.56 of the
Revised Code will be given to the victim only if the victim asks
to receive the notification.
(C) Upon the request of the victim, the prosecutor or, if it
is a delinquency proceeding and a prosecutor is not involved in
the case, the court shall give the victim notice of the date,
time, and place of any scheduled criminal or juvenile proceedings
in the case and notice of any changes in those proceedings or in
the schedule in the case.
(D) A victim who requests notice under division (C) of this
section and who elects pursuant to division (B) of section 2930.03
of the Revised Code to receive any further notice from the
prosecutor or, if it is a delinquency proceeding and a prosecutor
is not involved in the case, the court under this chapter shall
keep the prosecutor or the court informed of the victim's current
address and telephone number until the case is dismissed or
terminated, the defendant is acquitted or sentenced, the
delinquent child complaint is dismissed, the defendant is
adjudicated a delinquent child, or the appellate process is
completed, whichever is the final disposition in the case.
(E) If a defendant is charged with the commission of a
misdemeanor offense that is not identified in division (A)(2) of
section 2930.01 of the Revised Code and if a police report or a
complaint, indictment, or information that charges the commission
of that offense and provides the basis for a criminal prosecution
of that defendant identifies one or more individuals as
individuals against whom that offense was committed, after a
prosecution in the case has been commenced, the prosecutor or a
designee of the prosecutor other than a court or court employee,
to the extent practicable, promptly shall notify each of the
individuals so identified in the report, complaint, indictment, or
information that, if the defendant is convicted of or pleads
guilty to the offense, the individual may make an oral or written
statement to the court hearing the case regarding the sentence to
be imposed upon the defendant and that the court must consider any
statement so made that is relevant. Before imposing sentence in
the case, the court shall permit the individuals so identified in
the report, complaint, indictment, or information, and may permit
any other person who was emotionally, physically, or financially
harmed by the offense, to make an oral or written statement.
Division (A) of section 2930.14 of the Revised Code applies
regarding any statement so made. The court shall consider a
statement so made, in accordance with division (B) of that section
and division (D) of section 2929.22 of the Revised Code.
Sec. 2930.08. If a motion, request, or agreement between
counsel is made in a case and the motion, request, or agreement
might result in a substantial delay in the prosecution of the
case, the prosecutor in the case, to the extent practicable and if
the victim has requested notice and has provided current contact
information pursuant to division (B) of
section 2930.03 of the
Revised Code, shall inform the victim that the motion, request, or
agreement has been made and that it might result in a delay. If
the victim objects to the delay, the prosecutor shall inform the
court of the victim's objections, and the court shall consider the
victim's objections in ruling on the motion, request, or
agreement.
Sec. 2930.14. (A) Before imposing sentence upon, or entering
an order of disposition for, a defendant or alleged juvenile
offender for the commission of a crime or specified delinquent
act, the court shall permit the victim of the crime or specified
delinquent act, and may permit any other person who was
emotionally, physically, or financially harmed by the crime or
specified delinquent act, to submit a written statement prior to
or at the sentencing or disposition and make a an oral statement
during the sentencing or disposition proceeding. The court may
give copies of any written statement made by a victim or other
harmed person to the defendant or alleged juvenile offender and
defendant's or alleged juvenile offender's counsel and may give
any written statement made by the defendant or alleged juvenile
offender to the victim, the other harmed person, and the
prosecutor. The court may redact any information contained in a
written statement that the court determines is not relevant to and
will not be relied upon in the sentencing or disposition decision.
The written statement of the victim, the other harmed person, or
of the defendant or alleged juvenile offender is confidential and
is not a public record as used in section 149.43 of the Revised
Code. Any person to whom a copy of a written statement was
released by the court shall return it to the court immediately
following sentencing or disposition.
(B) The court shall consider a victim's statement made by a
victim or other harmed person under division (A) of this section
along with other factors that the court is required to consider in
imposing sentence or in determining the order of disposition. If
the statement includes new material facts, the court shall not
rely on the new material facts unless it continues the sentencing
or dispositional proceeding or takes other appropriate action to
allow the defendant or alleged juvenile offender an adequate
opportunity to respond to the new material facts.
Sec. 2930.17. (A) In determining whether to grant a judicial
release to a defendant from a prison term pursuant to section
2929.20 of the Revised Code at a time before the defendant's
stated prison term expires
or in determining whether to grant, a
judicial release or early release to an alleged juvenile offender
from a commitment to the department of youth services pursuant to
section 2151.38 of the Revised Code, an application to seal a
record of conviction pursuant to section 2953.32 of the Revised
Code, or an application to seal or expunge a juvenile record
pursuant to section 2151.356 or 2151.358 of the Revised Code, the
court shall notify the prosecutor regarding consideration and
hearing of the matter not less than ten days before the
consideration and hearing, and the prosecutor shall provide timely
notice to victims who have requested notice and who maintain
current contact information with the prosecutor. The court also
shall permit a victim of a crime or specified delinquent act for
which the defendant or alleged juvenile offender was incarcerated
or committed to make a statement, in addition to any other
statement made under this chapter, concerning the effects of that
crime or specified delinquent act on the victim, the circumstances
surrounding the crime or specified delinquent act, the manner in
which the crime or specified delinquent act was perpetrated, and
the victim's opinion whether the defendant or alleged juvenile
offender should be released or the record should be sealed or
expunged. The victim may make the statement in writing or, orally,
or both at the court's victim's discretion. The court shall give
the defendant or alleged juvenile offender and either the adult
parole authority or the department of youth services, whichever is
applicable, a copy of any written impact statement made by the
victim under this division.
(B) In deciding whether to grant a judicial release or early
release to the defendant or alleged juvenile offender or to seal
or expunge a record, the court shall consider a any statement made
by the victim under division (A) of this section or section
2930.14 or 2947.051 of the Revised Code or by any other harmed
person under section 2930.14 of the Revised Code.
(C) Upon making a determination whether to grant a judicial
release to a defendant from a prison term pursuant to section
2929.20 of the Revised Code, a judicial release or early release
to an alleged juvenile offender from a commitment to the
department of youth services pursuant to section 2151.38 of the
Revised Code, an application to seal a record of conviction
pursuant to section 2953.32 of the Revised Code, or an application
to seal or expunge a juvenile record pursuant to section 2151.356
or 2151.358 of the Revised Code, the court shall promptly notify
the prosecutor of the determination. Before ordering an offender
or juvenile released from custody, the court shall send the
custodial agency a copy of its journal entry of the determination.
Sec. 2930.19. (A) In a manner consistent with the duty of a
prosecutor to represent the interests of the public as a whole, a
prosecutor shall seek compliance with this chapter on behalf of a
victim, a member of the victim's family, or the victim's
representative. A victim of a crime, an attorney or other lawful
representative of the victim, or at the request of the victim the
prosecuting attorney has standing as a matter of right to assert
the rights of the victim provided by the law of this state in any
proceeding in any judicial or administrative tribunal having
jurisdiction. The tribunal shall act promptly on a request to
enforce the rights of the victim.
(B) The failure of a public official or public agency to
comply with the requirements of this chapter does not give rise to
a claim for damages against that public official or public agency,
except that a public agency as an employer may be held responsible
for a violation of section 2930.18 of the Revised Code.
(C) The failure of any person or entity to provide a right,
privilege, or notice to a victim under this chapter does not
constitute grounds for declaring a mistrial or new trial, or for
setting aside a conviction, sentence, adjudication, or
disposition, or for granting postconviction release to a defendant
or alleged juvenile offender.
(D) If there is a conflict between a provision in this
chapter and a specific statute governing the procedure in a case
involving a capital offense, the specific statute supersedes the
provision in this chapter.
(E) If the victim of a crime is incarcerated in a state or
local correctional facility or is in the legal custody of the
department of youth services, the victim's rights under this
chapter may be modified by court order to prevent any security
risk, hardship, or undue burden upon a public official or public
agency with a duty under this chapter.
Section 2. That existing sections 2929.18, 2929.20, 2929.22,
2929.28, 2930.01, 2930.02, 2930.06, 2930.08, 2930.14, 2930.17, and
2930.19 of the Revised Code are hereby repealed.
Section 3. Section 2929.20 of the Revised Code is presented
in this act as a composite of the section as amended by both Am.
Sub. H.B. 130 and Sub. S.B. 108 of the 127th General Assembly. The
General Assembly, applying the principle stated in division (B) of
section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation, finds
that the composite is the resulting version of the section in
effect prior to the effective date of the section as presented in
this act.
|
|