[Cite as State v. Fite, 2011-Ohio-507.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ADAMS COUNTY


STATE OF OHIO,                                 :
                                               :
             Plaintiff-Appellee,               :          Case No: 10CA888
                                               :
             v.                                :
                                               :          DECISION AND
DONOVAN FITE,                                  :          JUDGMENT ENTRY
                                               :
             Defendant-Appellant.              :    File-stamped date: 2-1-11



                                          APPEARANCES:

Timothy Young, Ohio State Public Defender, and Craig M. Jaquith, Ohio State Assistant
Public Defender, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.

Aaron E. Haslam, Adams County Prosecutor, and Mark R. Weaver, Adams County
Assistant Prosecutor, West Union, Ohio, for Appellee.


Kline, J.:

{¶1}         Donovan Fite (hereinafter “Fite”) pled guilty to murder and involuntary

manslaughter. On appeal, Fite raises arguments related to the propriety of his guilty

pleas, the length of his sentence, and the trial court’s order of restitution. Because the

Adams County Common Pleas Court’s Judgment Entry on Sentence fails to provide a

method for the payment of restitution, the entry is not a final appealable order.

Accordingly, we do not address Fite’s arguments and dismiss this appeal for lack of

jurisdiction.

                                               I.
Adams App. No. 10CA888                                                              2


{¶2}       Fite shot and killed Samuel Freeland (hereinafter “Freeland”) and Regina

King (hereinafter “King”). After reaching a plea agreement, Fite pled guilty to one count

of murder with a firearm specification and one count of involuntary manslaughter with a

firearm specification. After the firearms specifications were merged, the trial court

sentenced Fite to a combined term of twenty-eight years to life in prison. The trial court

also ordered Fite “to pay restitution in the amount of $12,779.66[.]” Judgment Entry on

Sentence at 3.

{¶3}       Fite appeals and asserts the following three assignments of error: I. “Donovan

Fite’s guilty plea was not knowing, voluntary, and intelligent because the trial court

misinformed him that he would be subject to a limited period of post-release control

upon his release from prison.” II. “The trial court unlawfully imposed consecutive terms

of imprisonment, when it did not make the findings required by statute.” And, III. “The

trial court erred in imposing a sentence that contains an order of restitution without

identification of the individual or entity entitled to receive such restitution.”

                                               II.

{¶4}       Before we may consider the merits of Fite’s appeal, we must determine

whether the trial court’s Judgment Entry on Sentence is a final appealable order. “A

court of appeals has no jurisdiction over orders that are not final and appealable.” State

v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, at ¶6, citing Section 3(B)(2), Article IV,

Ohio Constitution; see, also, R.C. 2505.02. “If a court’s order is not final and

appealable, we have no jurisdiction to review the matter and must dismiss the appeal.”

State v. Darget, Scioto App. No. 09CA3306, 2010-Ohio-3541, at ¶4, citing Eddie v.

Saunders, Gallia App. No. 07CA7, 2008-Ohio-4755, at ¶11. “If the parties do not raise
Adams App. No. 10CA888                                                                3


the jurisdictional issue, we must raise it sua sponte.” Darget at ¶4, citing Sexton v.

Conley (Aug. 7, 2000), Scioto App. No. 99CA2655; see, also, Chef Italiano Corp. v.

Kent State Univ. (1989), 44 Ohio St.3d 86, syllabus; Whitaker-Merrell v. Geupel Co.

(1972), 29 Ohio St.2d 184, 186.

{¶5}       “A judgment entry ordering restitution is not final and appealable if the entry

fails to provide either the amount of restitution or the method of payment.” City of

Toledo v. Kakissis, Lucas App. No. L-07-1215, 2008-Ohio-1299, at ¶3, citing In re

Holmes (1980), 70 Ohio App.2d 75, 77 (“The order appealed from was not a final

appealable order, because it settled neither the amount of restitution nor the method of

payment.”); State v. Kuhn, Defiance App. No. 4-05-23, 2006-Ohio-1145, at ¶8; State v.

Lange, Mercer App. No. 10-06-28, 2007-Ohio-2280, at ¶8, fn. 1. See, also, State v.

Baker, Butler App. No. CA2007-06-152, 2008-Ohio-4426, at ¶43. Here, the trial court’s

judgment entry provides an amount of restitution – $12,779.66. But the judgment entry

does not provide a method of payment. That is, the judgment entry does not specify the

intended recipients of the restitution.

{¶6}      From the record, we can discern the trial court’s intentions as to the restitution

amount. Freeland’s funeral apparently cost $9,379.66, and King’s funeral apparently

cost $3,400. These two figures total $12,779.66, the amount of restitution in the

judgment entry. However, the judgment entry does not provide how the $12,779.66

should be divided among the victims’ survivors. The state argues that we should

“simply modify the restitution order to reflect the trial court’s obvious intentions with

regard to whom restitution is due.” Brief of Appellee at 13. But after a thorough review

of the record, we cannot determine the intended recipients of the restitution order. We
Adams App. No. 10CA888                                                              4


recognize that the trial court mentioned the victims’ families during Fite’s sentencing

hearing. As the trial court explained, “the Court * * * feels compelled that * * * whatever

restitution for the imposition of the funeral expenses * * * that ha[ve] been placed upon

the families that * * * Mr. Fite should be required to pay as much as he possibly can[.]”

January 8, 2010 Transcript at 40. Here, despite mentioning the victims’ families in

general, the trial court never mentioned who, specifically, should be repaid the victims’

funeral expenses. We cannot discern whether the victims’ parents, siblings, children,

other family members, or some combination thereof are entitled to restitution. No

payment can be completed without an intended recipient. Therefore, because the trial

court did not provide a method for the payment of restitution, the Judgment Entry on

Sentence is not a final appealable order.

{¶7}      Accordingly, we must dismiss Fite’s appeal for lack of jurisdiction.

                                                                    APPEAL DISMISSED.
Adams App. No. 10CA888                                                            5


                                  JUDGMENT ENTRY

       It is ordered that the APPEAL BE DISMISSED. Appellant shall pay the costs
herein taxed.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Adams County Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.


      Abele, J.: Concurs in Judgment and Opinion.
      McFarland, J.: Dissents.


                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, 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.
