State v. Davis , 175 Ohio App. 3d 318 ( 2008 )

{¶ 49} I do not agree that the holding inState v. Gladden (1993), 86 Ohio App. 3d 287,620 N.E.2d 947, applies in the present case. The defendant inGladden didn't attack his conviction on appeal. Instead, he attacked the penalty the court imposed. In the present case, on the other hand, Davis successfully attacked his conviction, and we reversed it. The question is the effect, if any, that that reversal has on the forfeiture penalty imposed on his conviction.

{¶ 50} When appellant entered his plea of no contest on March 21, 2005, he voluntarily agreed to the forfeiture penalty that the court subsequently imposed pursuant to R.C. 2981.04. Because a criminal forfeiture operates as a fine, appellant's agreement to its voluntary payment through a forfeiture renders any error in its imposition moot, absent evidence that he will suffer some collateral disability or loss of civil rights from such payment. State v. Wilson (1975), 41 Ohio St. 2d 236, 70 O.O.2d 431, 325 N.E.2d 236. No suggestion is made that any collateral disability will result.

{¶ 51} Payment of a fine is the same as completely serving a sentence. Id. The rule of mootness applies when the fine is paid voluntarily, even when the conviction for which the fine was imposed is subsequently reversed. Therefore, I would overrule the assignment of error on a finding that the error assigned is moot.