[Cite as State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479.] 

THE STATE OF OHIO, APPELLANT, v. MOORE, APPELLEE.

[Cite as State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479.] 

Criminal law—Effects of failure to impose mandatory fine—Trial court’s failure 

to impose required fine renders void the part of the sentence waiving the 

fine—Resentencing is limited to imposing the mandatory fine. 

(No. 2011-1664—Submitted May 23, 2012—Decided November 29, 2012.) 

CERTIFIED by the Court of Appeals for Cuyahoga County, 

Nos. 96111 and 96112, 2011-Ohio-4246. 

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SYLLABUS OF THE COURT

A trial court’s failure to include the mandatory fine required by R.C. 

2925.11(E)(1)(a) and 2929.18(B)(1), when an affidavit of indigency is not filed 

with the court prior to the filing of the trial court’s journal entry of sentencing, 

renders that part of the sentence void. Resentencing is limited to the imposition 

of the mandatory fine. 

__________________ 

CUPP, J.

{¶ 1} In this certified conflict, we consider whether a trial court’s failure 

to impose the fine required by R.C. 2925.11(E)(1)(a) and 2929.18(B)(1), when no 

affidavit of indigency has been filed with the court prior to the trial court’s journal 

entry of sentencing, renders void the part of the sentence waiving the fine. For 

the reasons that follow, we conclude that a trial court’s failure to impose the 

required fine under these circumstances renders void the part of the sentence 

waiving the fine. Resentencing of the offender is limited to the imposition of the 

mandatory fine. We accordingly affirm the judgment of the court of appeals in 

resolving the certified conflict. 
SUPREME COURT OF OHIO

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I. Facts and Procedural History 

{¶ 2} In July 2009, appellee, Robert Moore III, was convicted by a jury 

of drug possession, drug trafficking, carrying a concealed weapon, and possessing 

criminal tools, some with certain specifications. The trial court sentenced Moore 

to an agreed-upon prison term of 13 years, and Moore waived his right to appeal. 

The trial court’s sentencing entry stated, “Based on [Moore’s] affidavit of 

indigency being filed; [sic] fine and costs are waived including mandatory fines.” 

The affidavit of indigency was not filed prior to the filing of the sentencing entry. 

{¶ 3} In another case, in August 2009, Moore pled guilty to drug 

trafficking with a firearm specification. The trial court sentenced him to an 

agreed-upon prison sentence of nine years, and Moore waived his right to appeal. 

The trial court’s sentencing entry stated, “Affidavit of indigency being filed; [sic] 

fine and costs are waived including mandatory fine.” Again, the affidavit of 

indigency was not filed prior to the filing of the sentencing entry. 

{¶ 4} Moore timely filed a notice of appeal in each. The court of appeals 

dismissed both appeals because Moore had waived his appellate rights. 

{¶ 5} In September 2010, Moore filed a motion in each case arguing that 

his sentences were void. Specifically, Moore noted that R.C. 2925.11(E)(1)(a) 

and 2929.18(B)(1) mandate that the trial court impose a fine unless an affidavit of 

indigency is filed. Moore asserted that the trial court failed to impose the 

mandatory fine even though his counsel did not file the affidavits. Accordingly, 

Moore maintained that each sentence was void and that the trial court should 

resentence him de novo and restore his appellate rights. The trial court denied the 

motions. 

{¶ 6} Moore timely appealed to the Eighth District Court of Appeals. 

The appellate court held that the trial court’s failure to impose the mandatory fine 

without a filing of an affidavit of indigency rendered void only the part of 

Moore’s sentence waiving that fine. State v. Moore, 8th Dist. Nos. 96111 and 
January Term, 2012 

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96112, 2011-Ohio-4246, at ¶ 18. The appellate court vacated the part of Moore’s 

sentences that waived the fine and remanded both cases for resentencing 

consistent with R.C. 2929.18(B)(1). Id. 

{¶ 7} Thereafter, the court of appeals found its judgment in this case to 

be in conflict with the holding of State v. DeLoach, 5th Dist. No. 05CA008858, 

2006-Ohio-4409. That case held under similar facts that waiving the fine without 

the filing of the affidavit of indigency does not render any of that sentence void 

and that any error should have been addressed on direct appeal. The Eighth 

District Court of Appeals then certified the record to this court for review and 

final determination. We recognized that a conflict exists on the following issue: 

"Whether a trial court's failure to impose the statutorily mandated fine required by 

R.C. 2925.11(E) and 2929.18(B)(1) when no affidavit of indigency is filed with 

the clerk of court prior to the filing of the trial court’s journal entry of sentencing 

renders that part of the sentence waiving the fine void." State v. Moore, 130 Ohio 

St.3d 1474, 2011-Ohio-6124, 957 N.E.2d 1167. 

II. Relevant Statutes 

A. R.C. 2929.18(B)(1)–Financial Sanctions 

For a first, second, or third degree felony violation of any 

provision of Chapter 2925., 3719., or 4729. of the Revised Code, 

the sentencing court shall impose upon the offender a mandatory 

fine * * *. If an offender alleges in an affidavit filed with the court 

prior to sentencing that the offender is indigent and unable to pay 

the mandatory fine and if the court determines the offender is an 

indigent person and is unable to pay the mandatory fine described 

in this division, the court shall not impose the mandatory fine upon 

the offender. 
SUPREME COURT OF OHIO

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B. R.C. 2925.11(E)(1)(a)–Possession of Drugs 

In addition to any prison term or jail term * * *, the court 

that sentences an offender who is convicted of or pleads guilty to a 

violation of division (A) of this section shall * * * impose upon the 

offender the mandatory fine specified for the offense under 

division (B)(1) of section 2929.18 of the Revised Code unless, as 

specified in that division, the court determines that the offender is 

indigent. 

III. Analysis 

{¶ 8} Our recent decision in State v. Harris, 132 Ohio St.3d 318, 2012-

Ohio-1908, 972 N.E.2d 509, is instructive in resolving the current issue. In that 

case, Mario Harris had pled guilty to drug trafficking. In the sentencing entry, the 

trial court had imposed a prison sentence of five years, but had failed to impose a 

mandatory driver’s license suspension and fine as required by R.C. 2925.03(D)(2) 

and (G).1

 Id. at ¶ 3-4. Harris argued that this failure rendered his entire sentence 

void. Id. at ¶ 30. 

 

1. R.C. 2925.03 states: 

(D) In addition to any prison term authorized or required * * *, the 

court that sentences an offender who is convicted of or pleads guilty to a 

violation of [trafficking in drugs] shall * * * (2) * * * suspend the driver's or 

commercial driver's license or permit of the offender in accordance with division 

(G) of this section. 

* * * 

 (G) When required under division (D)(2) of this section or any other 

provision of this chapter, the court shall suspend for not less than six months or 

more than five years the driver's or commercial driver's license or permit of any 

person who is convicted of or pleads guilty to any violation of this section or 

any other specified provision of this chapter. If an offender's driver's or 

commercial driver's license or permit is suspended pursuant to this division, the 

offender, at any time after the expiration of two years from the day on which the 

offender's sentence was imposed or from the day on which the offender finally 
January Term, 2012 

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{¶ 9} In Harris, we determined that a mandatory driver’s license 

suspension was analogous to postrelease control. Id. at ¶ 14. At the completion 

of an offender’s prison sentence, the executive branch cannot impose either 

postrelease control or a driver’s license suspension if the trial court failed to 

properly impose either term in the sentence. Id., citing State v. Joseph, 125 Ohio 

St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 17. Moreover, both postrelease 

control and suspension of a driver’s license are criminal sanctions, and both are 

mandated by statute. Id. at ¶ 14. A trial court has a statutorily mandated duty to 

notify an offender of postrelease control at the sentencing hearing and to 

incorporate that notice into the journal entry imposing the sentence. State v. 

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 9, 23. 

Similarly, R.C. 2925.03(D)(2) and (G) require a trial court to impose a driver’s 

license suspension as part of an offender’s sentence. Harris at ¶ 14. 

{¶ 10} We concluded in Harris that our holdings as to the effect of the 

failure to properly impose postrelease control apply to the driver’s license 

suspension. Id. Because a driver’s license suspension is a statutorily mandated 

term, the sentence is void in part when the trial court fails to include the term in 

sentencing. Id. at ¶ 16, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio6238, 942 N.E.2d 332. Resentencing is limited to the imposition of the 

mandatory driver’s license suspension. Id. at ¶ 18. 

{¶ 11} We also explained why our decision in Joseph, 125 Ohio St.3d 76, 

2010-Ohio-954, 926 N.E.2d 278, did not control. In Joseph, we held that an 

offender’s sentence is not void when a trial court fails to inform an offender in 

open court of court costs. Id. at ¶ 22. The court’s waiver of payment of court 

 

was released from a prison term under the sentence, whichever is later, may file 

a motion with the sentencing court requesting termination of the suspension; 

upon the filing of such a motion and the court's finding of good cause for the 

termination, the court may terminate the suspension. 
SUPREME COURT OF OHIO

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costs is discretionary, although the imposition of court costs is mandatory. Id. at 

¶ 18. Moreover, court costs are a civil, not a criminal, matter. Id. at ¶ 20-21. 

“[T]he civil nature of the imposition of court costs does not create the taint on the 

criminal sentence that the failure to inform a defendant of postrelease control 

does.” Id. at ¶ 21. 

{¶ 12} But the failure to impose the mandatory fine more closely 

resembles the failure to impose a driver’s license suspension and postrelease 

control than it does the failure to impose court costs. First, a fine is not a civil 

sanction subject only to collection “ ‘by the methods provided for the collection 

of civil judgments.’ ” Id. at ¶ 20, quoting Strattman v. Studt, 20 Ohio St.2d 95, 

253 N.E.2d 749 (1969), paragraph six of the syllabus. Instead, it is a criminal 

sanction. R.C. 2947.14(A) confers upon the sentencing court the power to order 

the offender “committed to the jail or workhouse until the fine is paid or secured 

to be paid, or the offender is otherwise legally discharged, if the court * * * 

determines at a hearing that the offender is able, at that time, to pay the fine but 

refuses to do so.” 

{¶ 13} Additionally, the fine is a mandated term pursuant to R.C. 

2929.18(B)(1). If the affidavit of indigency is not filed, the court “shall impose 

upon the offender a mandatory fine.” (Emphasis added.) Id. However, if the 

affidavit is timely filed and the court determines that the offender is indigent, the 

court “shall not impose the mandatory fine upon the offender.” (Emphasis 

added.) Id. Therefore, the trial court has no discretion in deciding whether to 

impose the fine. 

{¶ 14} Because the fine is a statutory punishment, the trial court’s failure 

to impose the fine when an affidavit of indigency is not filed with the court prior 

to the filing of the trial court’s journal entry of sentencing renders that part of the 

sentence void. See Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, 

¶ 17. It is a longstanding principle that an offender’s sentence that does not 
January Term, 2012 

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properly include a statutorily mandated term is contrary to law. Colegrove v. 

Burns, 175 Ohio St. 437, 195 N.E.2d 811 (1964); State v. Beasley, 14 Ohio St.3d 

74, 75, 471 N.E.2d 774 (1984). 

{¶ 15} In determining the appropriate relief, the analysis in Fischer is 

again illuminating. In Fischer, we found the illegal-sentence doctrine convincing: 

 “A motion to correct an illegal sentence ‘presupposes a 

valid conviction and may not, therefore, be used to challenge 

alleged errors in proceedings that occur prior to the imposition of 

sentence.’ ” Edwards v. State (1996), 112 Nev. 704, 708, 918 P.2d 

321, quoting Allen v. United States (D.C.1985), 495 A.2d 1145, 

1149. It is, however, an appropriate vehicle for raising the claim 

that a sentence is facially illegal at any time. Id. The scope of 

relief based on a rule * * * is likewise constrained to the narrow 

function of correcting only the illegal sentence.” 

Id. at ¶ 25. Accordingly, “when a judge fails to impose statutorily mandated 

postrelease control as part of a defendant’s sentence, that part of the sentence is 

void and must be set aside.” (Emphasis sic.) Id. at ¶ 26. 

{¶ 16} In Harris, we determined that this logic also applies when the trial 

court failed to properly impose the mandatory driver’s license suspension. 132 

Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, at ¶ 17. We see no reason 

why it does not again control with respect to the statutorily mandated fine. 

IV. Conclusion 

{¶ 17} Therefore, we resolve this certified conflict by holding that a trial 

court’s failure to include the mandatory fine required by R.C. 2925.11(E)(1)(a) 

and 2929.18(B)(1), when an affidavit of indigency is not filed with the court prior 

to the filing of the trial court’s journal entry of sentencing, renders that part of the 
SUPREME COURT OF OHIO

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sentence void. We further hold that resentencing of the offender is limited to the 

imposition of the mandatory fine. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, and 

MCGEE BROWN, JJ., concur. 

LANZINGER, J., dissents. 

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LANZINGER, J., dissenting.

{¶ 18} This should come as no surprise to anyone, but I dissent. Yet 

again, the majority ignores its own limitation that State v. Fischer, 128 Ohio St.3d 

92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 31, applies to “a discrete vein of cases: 

those in which a court does not properly impose a statutorily mandated period of 

postrelease control.” Now the majority holds that the failure to impose the fine 

required by R.C. 2925.11(E) and 2929.18(B)(1) when an affidavit of indigency 

was not filed with the court before the court journalized its sentencing entry 

rendered that part of the sentence void. When will this end? For the reasons 

recently expressed in my separate opinion in State v. Billiter, 134 Ohio St.3d 103, 

2012-Ohio-5144, 980 N.E.2d 960, I dissent. 

__________________ 

 Timothy McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. 

Van, Assistant Prosecuting Attorney, for appellant. 

 Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant 

Public Defender, for appellee. 

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