In re J.A. ( 2012 )

[Cite as In re J.A., 2012-Ohio-2184.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
IN THE MATTER OF: :
:
J.A., : Case No. 11CA27
:
ADJUDICATED DELINQUENT CHILD :
AND JUVENILE TRAFFIC OFFENDER. : DECISION AND JUDGMENT ENTRY
:
: RELEASED 04/30/12
:
_______________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Laura E. Austen, Ohio State
Assistant Public Defender, Columbus, Ohio, for Appellant.
J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Kevin J. Waldo,
Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.
________________________________________________________________
Harsha, J.
{¶1} J.A. appeals the juvenile court’s judgment adjudicating him a
delinquent child and suspending his ability to obtain a driver’s license until his
eighteenth birthday. He raises one assignment of error, but because the trial
court ordered restitution without specifying the amount or method of payment, its
order does not constitute a final, appealable order. Consequently, we lack
jurisdiction to consider J.A.’s appeal and must dismiss it.
I. FACTS
{¶2} After J.A. crashed his parents’ vehicle into a house, he was
charged with (1) driving without a driver’s license, in violation of R.C. 4510.12, (2)
failure to wear a safety belt, in violation of R.C. 4513.263, (3) hit-skip, in violation
of R.C. 4549.02, and (4) failure to control, in violation of R.C. 4511.202. A
Lawrence App. No. 11CA27 2
subsequent complaint alleged J.A. to be a delinquent child for committing three
counts of vandalism, in violation of R.C. 2909.05.
{¶3} Following an adjudicatory hearing, the court found J.A. to be a
delinquent child for committing (1) vandalism, a fourth degree felony, (2) two
counts of criminal damaging, second-degree misdemeanors, and (3) hit/skip.
The court dismissed the driving without a license, seat belt, and failure to control
charges. As part of its dispositional order, the court ordered J.A. to pay
restitution, but it did not fix the amount or payment method. Instead, the court set
the restitution matter for a further hearing. The court entered additional
dispositional orders that are not presently relevant.
II. ASSIGNMENT OF ERROR
{¶4} J.A. raises one assignment of error:
“The juvenile court erred when it restricted J.A.’s future right to
obtain a driver’s license.”
III. NO FINAL, APPEALABLE ORDER
{¶5} Because the trial court failed to set the amount of, or payment
method for, restitution, its order does not constitute a final, appealable order, and
we are without jurisdiction to review J.A.’s appeal. Appellate courts “have such
jurisdiction as may be provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to the court of appeals
within the district[.]” Ohio Constitution, Article IV, Section 3(B)(2). If a court's
order is not final and appealable, we have no jurisdiction to review the matter and
must dismiss the appeal. E.g., Eddie v. Saunders, 4th Dist. No. 07CA7, 2008–
Ohio–4755, ¶11. If the parties do not raise the jurisdictional issue, we must raise
Lawrence App. No. 11CA27 3
it sua sponte. E.g., State v. Locke, 4th Dist. No. 11 CA3409, 2011–Ohio–5596,
¶4.
{¶6} When a judgment entry orders restitution but fails to set the amount
or method of payment, the entry is not a final, appealable order. In re Holmes,
70 Ohio App.2d 75, 77, 434 N.E.2d 747 (1980). Accord State v. Korosi, 8th Dist.
No. 95404, 2011-Ohio-2524; State v. Thompson, 4th Dist. No. 10CA3177, 2011-
Ohio-1564; State v. Phillips, 8th Dist. No. 90124, 2008-Ohio-5101; State v. Kuhn,
3rd Dist. No. 4-05-23, 2006-Ohio-1145; In re Alonzo B., 6th Dist. No. E-98-050
(Feb. 12, 1999); In re Zakov, 107 Ohio App.3d 716, 669 N.E.2d 344 (1995). As
we explained in Thompson:
The July 13, 2010 Judgment Entry of Sentence is not final
and appealable because it “‘leaves issues unresolved and
contemplates that further action must be taken[.]’” State v. Kline,
Henry App. No. 7–10–09, 2010–Ohio–6378, at ¶4, quoting State ex
rel. Keith v. McMonagle, 103 Ohio St.3d 430, 816 N.E.2d 597,
2004–Ohio–5580, at ¶4 (other internal quotation omitted). See,
also, State v. Phillips, Cuyahoga App. No. 90124, 2008–Ohio-5101,
at ¶5, citing State v. Threatt, 108 Ohio St.3d 277, 843 N.E.2d 164,
2006–Ohio–905, at ¶20. Here, the Judgment Entry of Sentence
states that “[a] restitution hearing will be on June 16, 2010 at 2:00
P.M., by agreement of counsel.” Thus, the Judgment Entry of
Sentence leaves the issue of restitution unresolved and
contemplates further action related to restitution.
Other courts have found that similar judgment entries were
not final and appealable. For example, in Phillips, the judgment
entry stated that the trial “[c]ourt reserve[d] Judgment on restitution
amount until further proceedings[.]” Phillips at ¶3. As a result, the
Eighth District Court of Appeals found that the entry was not final
and appealable. Additionally, the Eleventh District Court of Appeals
found “that the notation ‘Restitution to be determined’ render[s an]
entry interlocutory.” In re Zakov (1995), 107 Ohio App.3d 716, 718,
669 N.E.2d 344. * * * *
Id. at ¶¶7-8.
Lawrence App. No. 11CA27 4
{¶7} Here, as in Thompson, the trial court’s entry set the restitution
matter for a further hearing and thus, contemplates further action and leaves the
restitution issue unresolved.1 Because its entry leaves an issue unresolved, the
entry does not constitute a final, appealable order. Accordingly, we lack
jurisdiction to consider J.A.’s appeal and must dismiss it.
APPEAL DISMISSED.
1
Upon the trial court’s journalization of an order that resolves the restitution issues, J.A. should
file a new notice of appeal if he wishes to pursue his appeal. If such a notice of appeal would be
untimely, he may pursue a delayed appeal under App. R. 5(A).
Lawrence App. No. 11CA27 5
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMISSED and that Appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court, Probate/Juvenile Division, to carry this
judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed sixty days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the sixty day period, or the failure of the Appellant
to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of sixty days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.