DocketNumber: No. 15-07-07.
Citation Numbers: 880 N.E.2d 150, 173 Ohio App. 3d 719, 2007 Ohio 6235
Judges: SHAW, Judge.
Filed Date: 11/26/2007
Status: Precedential
Modified Date: 1/13/2023
{¶ 1} Although this case was originally placed on our accelerated calendar, we have elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry. Defendant-appellant, Troy Clark, appeals from the May 16, 2007 judgment entry of the Court of Common Pleas of Van Wert County, Ohio, denying his motion for return of a firearm.
{¶ 2} On July 7, 2006, a Van Wert County grand jury returned an indictment charging Clark with one count of negligent homicide, a misdemeanor of the first degree in violation of R.C.
{¶ 3} On March 14, 2007, Clark entered into a written plea of no contest to the charge of negligent homicide as contained in the indictment. In a judgment entry dated March 19, 2007, the trial court accepted Clark's plea of no contest, ordered a pre-sentence investigation, and continued the matter for sentencing.
{¶ 4} On April 25, 2007, the trial court conducted Clark's sentencing hearing, wherein the court found that Clark had been convicted of negligent homicide, a misdemeanor of the first degree in violation of R.C.
{¶ 5} On April 27, 2007, Clark filed a motion for return of firearm, alleging that the state had not moved for forfeiture or destruction of the firearm, and therefore the firearm should be returned to its rightful owner, Clark's father. In an entry dated April 30, 2007, the trial court granted the parties until May 15, 2007, to present "legal arguments with supporting legal citations to support their respective position why the firearms should or should not be returned to their owners." The state filed a response in opposition to Clark's motion on April 30, 2007. On May 16, 2007, Clark filed his argument in support of his motion for return of firearm. Also on May 16, 2007, without conducting a hearing, the trial court issued an entry denying Clark's motion for return of firearm, wherein the court ordered as follows:
The Division of Wildlife shall retain possession of said firearm until the expiration of the defendant's right to appeal this decision. If an appeal is taken, the Division of Wildlife shall retain possession of said firearm until the disposition of the appeal. If no appeal is taken, the Division of Wildlife shall dispose of said firearm in accordance with law.
{¶ 6} Clark now appeals, asserting one assignment of error.
{¶ 7} In his sole assignment of error, Clark alleges that the state failed to follow the proper procedure for forfeiture or disposition of the firearm used in the commission of the crime in the present case, and, accordingly, that the trial court erred in denying his motion for return of the firearm. *Page 722
{¶ 8} Initially, we note that in Ohio, forfeitures are typically not favored in law or equity.State v. Johns (1993),
{¶ 9} On appeal, the state argues that R.C.
{¶ 10} Additionally, R.C.
{¶ 11} R.C.
(C) A person loses any right he may have to the possession, or the possession and ownership, of property if any of the following applies:
(1) The property was the subject, or was used in a conspiracy or attempt to commit, or in the commission, of an offense other than a traffic offense, and the person is a conspirator, accomplice, or offender with respect to the offense.
(2) A court determines that the property should be forfeited because, in light of the nature of the property or the circumstances of the person, it is unlawful for the person to acquire or possess the property.
{¶ 12} In the instant case, the trial court's May 16, 2007 entry does not specifically refer to R.C.
{¶ 13} We note that there is no record on this appeal other than the transcript of the docket entries. There is no transcript of the testimony on Clark's no-contest plea, no transcript of the testimony at sentencing, and no suggestion of a hearing on Clark's motion for return of the weapon. Additionally, it appears as if the issue of third-party ownership of the weapon by Clark's father was not brought to the trial court's attention until Clark filed his motion for return of firearm on April 27, 2007, and was not addressed further by any party or the court.
{¶ 14} Although R.C.
{¶ 15} Finally, we note that the legislation accompanying R.C.
Sections 1, 2, and 3 of this act shall take effect on July 1, 2007. If a criminal or civil forfeiture action relating to misconduct under Title XXIX of the Revised Code was or is commenced before July 1, 2007, and is still pending on that date, the court in which the case is pending shall, to the extent practical, apply the provisions of Chapter 2981 of the Revised Code in the case.
{¶ 16} On the state of the foregoing record and pursuant to the directives of Section 4 of 2006 H.B. 241, it is the decision of this court that this matter be remanded with instructions to the trial court to solicit such motions, provide such notices, and conduct such hearings as are necessary to determine the disposition of this weapon in accordance with the provisions of R.C.
Judgment vacated and cause remanded.
ROGERS, P.J., and PRESTON, J., concur.
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