[Cite as State v. Watts , 2012-Ohio-4984.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 25021

v. : T.C. NO. 10CR1625 KYLE A. WATTS : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 26th day of October , 2012.

. . . . . . . . . . R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402 Attorneys for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} This matter is before the Court on the Notice of Appeal of Kyle Watts, filed[Cite as State v. Watts , 2012-Ohio-4984.] February 6, 2012. Watts pled guilty to one c ount of aggravated vehicular assault, in violation of R.C. 2903.08(A)(1), a felony of the third degree, and one c ount of driving while under the influence of alcohol, in violati on of R.C.4511.19(A1a)/(G1a) , a misdemeanor of the first degree. Watts received a one year se ntence for the felony offense, and 180 days for the misdemeanor offense, to be served concurrently, for an aggregate term of one year. Watts was also ordered to pa y $46,800.00 in restitution to Donald Neace for economic loss. {¶ 2} On September 1, 2011, Watts filed a “Motion to Terminate Restitution Order,” in which he asserted that since the se ntencing hearing, “it was discovered that the complaining witness had previously released a ll claims with the Defendant in the amount of $100,000.00 * * * . Further, the complaining witn ess had released the Defendant from any further claims.” Watts asserted that the restitution order was sa tisfied and should be terminated. The State responded that the trial court lacked ju risdiction to reconsider the order of restitution. {¶ 3} On January 11, 2012, the trial court overruled Watt’s motion and determined that its restitution order was for “lost wages and other expenses related to the victim’s disability caused by inju ries suffered in the accident a nd as a direct result of the Defendant’s illegal activ ity.” The court noted that th e “victim received personal injury settlement proceeds for other lo sses that were suffered,” a nd that no “third party has compensated the victim for the economic losse s he suffered that are the basis of the restitution order.” {¶ 4} Watts asserts one assign ment of error as follows: “THE TRIAL COURT ABUSED ITS DISCRETION IN UPHOLDING RESTITUTION FOR LOST WAGES AND MEDICAL EXPENSES WHEN THE VICTIM3 RECEIVED INSURANCE PROCEEDS FR OM THOSE SAME EXPENSES.” {¶ 5} The State responds that Watts’ argume nts are barred by the doctrine of res judicata, and that the trial court “did not err by overruling Watts’ motion to terminate restitution because the court lacked authority to reconsider its own final judgment once the sentence was executed.” {¶ 6} We initially note that Watts failed to provide a transcript of the proceedings below. “The duty to provide a transcript fo r appellate review falls upon the appellant. * * * . An appellant bears the burden of showing prejudicial error by reference to matters in the record. * * * .” Shirley v. Kruse, 2d Dist. Greene No. 2006-CA-12, 2007-Ohio-193, ¶ 22. Nevertheless, it does not appear that the trial court conduc ted a hearing on Watts’ motion. {¶ 7} R.C. 2953.02 “provides that a court of appeals may review a ‘judgment’ or ‘final order.’” State v. Danison , 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444, ¶ 5. “A final order is an order that in effect de termines the case. R.C. 2505.02(B)(1) * * * .” Id

. As the Court in Danison noted: Generally, in a criminal case, the final judgment is the sentence. * * * The sentence is the sanction or combination of sanctions imposed by the sentencing court on an offender who pleads guilty to or is convicted of an offense. R.C. 2929.01(FF). The sentence imposed on an offender for a felony may include financia l sanctions, including restitution in an amount based on the victim’s economic loss. R.C. 2929.18(A)(1). Id ., ¶ 6. The Danison court concluded that “an order of restitution imposed by the sentencing court on an offender for a felony is part of the sentence and, as such, is a final and appealable order.” Id ., ¶4 8. {¶ 8} However, Crim.R. 57(B) provides: “If no procedure is specifically prescribed by rule, the court may proceed in an y lawful manner not inconsistent with these rules of criminal procedure, and shall look to the ru les of civil procedure and to th e applicable law if no rule of criminal procedure exists.” {¶ 9} Rather than asking the court to reconsider its restitution order, Watts asked the court to vacate the order because, in his view, the victim had been made whole for his economic losses for which the restitution wa s ordered. Watts’ motion is akin to a Civ.R. 60(B)(4) motion. That rule provides: “On motion and upon such term s as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (4) the judgment has been satisfied, released or discharged * * * or it is no longer equitable that the judgment should have prosp ective application.” Since Crim. R. 57(B) authorizes reliance upon the Civil Rules when appropria te, we hereby reverse and rema nd the matter to the trial court to conduct an evidentiary hearing to determine whether the restitution order was, in fact, satisfied by virtue of a civil settlement. {¶ 10} Judgment on Watts’ motion to terminate restitution is reversed and remanded for further proceedings consistent with this opinion.

. . . . . . . . . . GRADY, P.J. and HALL, J., concur. Copies mailed to: R. Lynn Nothstine Jon Paul Rion Nicole Rutter-Hirth Hon. Timothy N. O’Connell5