[Cite as State v. DeWitt, 2014-Ohio-162.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HENRY COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 7-13-07 

 v. 

CAREY E. DEWITT, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Napoleon Municipal Court 

Trial Court No. 11TRC0235 

Judgment Reversed and Cause Remanded 

Date of Decision: January 21, 2014 

 

APPEARANCES: 

 

Carey E. DeWitt, Appellant 

Trevor M. Hayberger for Appellee 
Case No. 7-13-07 

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WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Carey E. DeWitt (“DeWitt”) brings this appeal 

from the judgment of the Napoleon Municipal Court denying DeWitt’s motion to 

return his property. For the reasons set forth below, the judgment is reversed. 

{¶2} On May 16, 2011, DeWitt entered a no contest plea to one count of 

having physical control of a vehicle while under the influence of alcohol, in 

violation of R.C. 4511.194(B)(1). Doc. 11. The trial court found DeWitt to be 

guilty and sentenced him to 30 days in jail, with 20 days conditionally suspended, 

along with a fine of $1,000. Id. The ten day jail term was served starting July 22, 

2011. Doc. 25. DeWitt allegedly did not pay his court costs and fines. On March 

12, 2013, the docket reflects that a “forfeiture with the BMV” was to be initiated. 

The record does not contain an entry ordering that this occur. The docket then 

reflects that on March 19, 2013, the license forfeiture was submitted. 

{¶3} On April 2, 2013, DeWitt filed a motion to have his property returned 

and requested that the trial court lift the license forfeiture. Doc. 36. DeWitt failed 

to serve the motion on the State. Id. The trial court denied DeWitt’s motion on 

May 22, 2013. Doc. 37. DeWitt filed his notice of appeal on June 21, 2013. Doc. 

38. DeWitt raises the following assignments of error. 

First Assignment of Error 

The trial court abused its discretion by instituting a general or 

blanket administrative order or instruction to cause its clerk of 
Case No. 7-13-07 

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courts to act in the courts behalf without discretion to collect 

fines and/or costs without a judgment entry that is in violation of 

[DeWitt’s] Constitutional Rights of “Due Process”. 

Second Assignment of Error 

The trial court abused its discretion in denying [DeWitt’s] 

“Motion to Return Defendant’s Property” as it violated due 

process of law guaranteed by Fifth and Fourteenths Amendment 

of the U.S. Constitution and Article I of the Ohio Constitution. 

Third Assignment of Error 

The trial court knowingly committed plain error and judicial 

misconduct when holding court costs collectable as that of a 

penal fine. 

{¶4} In the first and second assignments of error, DeWitt essentially argues 

that the trial court erred by denying his motion to have his license reinstated when 

it affirmed the forfeiture that was done without a judgment entry. A review of the 

record reveals that there is no judicial finding that the license should be forfeited 

for failure to pay fines. We note that DeWitt alleges in his brief that there is a 

“general or blanket administrative order or instruction” to the clerk to enter the 

forfeiture paperwork to the BMV in cases like this. However, a review of the 

record contains no indication that such an order exists. The trial court’s judgment 

entry from which the appeal is brought does not indicate such, but instead states 

that the court “issued a license forfeiture for the Defendant’s failure to pay his 

fines and costs.” May 22, 2013 Entry, 3. Our review of this case is limited by the 

rule that a court of appeals is bound to the record before it and may not consider 
Case No. 7-13-07 

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facts outside of the record. Paulin v. Midland Mut. Life Ins. Co., 37 Ohio St.2d 

109, 112, 307 N.E.2d 908 (1974). 

{¶5} The process for forfeiture of a license for a failure to pay a fine is 

controlled by R.C. 4510.22. 

(A) If a person who has a current valid Ohio driver’s [license] * 

* * is charged with a violation of any provision in sections 

4511.01 to 4511.76, 4511.84, 4513.01 to 4513.65, or 4549.01 to 

4549.65 of the Revised Code that is classified as a misdemeanor 

of the first, second, third, or fourth degree or with a violation of 

a substantially equivalent municipal ordinance and if the person 

* * * is found guilty of the violation and fails within the time 

allowed by the court to pay the fine imposed by the court, the 

court shall declare the forfeiture of the person’s license. Thirty 

days after the declaration of forfeiture, the court shall inform 

the registrar of motor vehicles of the forfeiture by entering 

information relative to the forfeiture on a form approved and 

furnished by the registrar and sending the form to the registrar.

R.C. 4510.22(A) (emphasis added). DeWitt’s assignment of error raises the 

question as to whether the order of forfeiture must be entered by the trial court or 

may be entered by the clerk of courts. 

{¶6} Any decision determining the individual rights of any person is 

reserved to the judge or judges of a court. State v. Wilson, 102 Ohio App.3d 467, 

471, 657 N.E.2d 518, (1995). 

[J]udicial power is the power to decide and pronounce a 

judgment and carry it into effect in a controversy between two 

or more persons who by right bring that case before the court 

for its decision. Such decisions usually, but do not always, 

involve an exercise of discretion by the judicial officer who 

makes them. 
Case No. 7-13-07 

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A clerk of courts is a ministerial officer, one who performs a 

fixed and designated function that involves no exercise of 

discretion. The clerk makes and has custody of the court’s 

records, has the power to certify the correctness of transcripts 

from those records, and files the court’s papers, enters its 

judgments, and issues writs and process in the court’s name. 

The clerk is an arm of the court in these respects, doing acts 

which a judge of the court would otherwise do. * * * The clerk is 

not a judicial officer and cannot perform judicial duties or act in 

exercise of the judicial power. * * * 

Not every judicial duty involves an exercise of discretion. Some 

judicial duties are ministerial, duties of a judge incident to the 

judicial power. Generally, those ministerial duties of a judge 

may be delegated to the clerk by statute or by court order. 

Examples include the power to administer oaths. * * * Those 

duties which do involve the exercise of judicial power are 

reserved to the judge and may not be delegated, by statute, 

order, or rule. Any determination of a fact or legal principle 

upon which the rights of one or more of the parties before the 

court is decided is an exercise of the judicial power which may 

not be delegated to the clerk. 

Id. at 471-72. A declaration of forfeiture of a driver’s license pursuant to this 

statute is not a ministerial act which may be delegated to the clerk of courts. Id. at 

472. See State v. Kovacs, 5th Dist. Licking No. 97CA156, 1998 WL 345535 (June 

18, 1998) (holding that a declaration of forfeiture must be entered by a municipal 

court judge, not its clerk). A declaration of forfeiture requires a judge to make a 

finding of fact that the defendant has failed to pay his or her fines within the time 

allowed by the court. Id. at 473. If the forfeiture is done without the trial court 
Case No. 7-13-07 

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making the necessary finding, the action taken by the clerk to have the license 

forfeited is void. Id. 

{¶7} Here, the record does not show that the trial judge made a finding that 

the fines were not paid within the time allowed by the trial court. There is no 

judgment entry indicating such a finding and no judgment entry ordering the clerk 

to send the appropriate form to the BMV.1

 In addition, the record discloses that 

the hearing was held on March 12, 2013, and the forfeiture form was sent to the 

BMV on March 19, 2013. This is not 30 days after the declaration of forfeiture. 

Thus the forfeiture was imposed in error. Pursuant to R.C. 4510.22, the trial court 

must first make a finding that the license shall be forfeited and then thirty days 

after the finding, the form shall be transmitted to the BMV. A trial court speaks 

only through its judgment entries. State v. Brown, 3d Dist. Allen No. 1-06-66, 

2007-Ohio-1761, ¶3. This means that for the trial court to make the necessary 

findings to impose a forfeiture of one’s license, the trial judge must make a 

judgment entry which is signed by the judge. Civ.R. 58(A), see also Lamb v. 

Lamb, 2d Dist. Montgomery No. 23538, 24076, 2011-Ohio-2970, ¶11. Since the 

record contains no showing that this occurred in this case, the first and second 

assignments of error are sustained. 

 

1

 This court notes that even if there had been a blanket administrative order to send the forfeiture 

paperwork to the BMV in cases like this, it would not have complied with the requirement that a judge 

enter the judgment in each case. In Wilson, supra, there was such an order and the court held it was 

insufficient because it delegated the fact finding responsibility of the judge, the requirement that a failure to 

pay the fines be found, to a clerk, which is not a ministerial task which could be delegated. Id.
Case No. 7-13-07 

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{¶8} In the third assignment of error, DeWitt alleges that the trial court 

erred by ordering a forfeiture of the license for failure to pay court costs. The 

controlling statute regarding the trial court’s authority to order forfeiture of a 

driver’s license for failure to pay is R.C. 4510.22. As set forth above, the statute 

provides that the trial court may order the forfeiture of a defendant’s license if they 

fail to pay the court ordered fine within the time allowed by the trial court. The 

statute does not permit the trial court to order forfeiture of a license for failure to 

pay court costs. State v. Short, 2d Dist. Darke No. 2011 CA 16, 2012-Ohio-2546. 

“As for the nonpayment of the defendant’s costs, [this court] followed the 

principle that ‘[a] judgment for costs in a criminal traffic case is a civil, not a 

criminal obligation, and may be collected only by the methods provided for the 

collection of civil judgments.’ (Citation omitted).” State v. Ellis, 2d Dist. 

Montgomery No. 22189, 2008–Ohio–2719, ¶ 19 and Short, supra. The trial court 

in this case stated the following in its order. “The Court finds that it has the 

authority under R.C. § 4510.22 to issue a driver’s license forfeiture for the 

Defendant’s failure to pay his fines and costs as previously ordered.” May 22, 

2013 Entry, 3. This is an incorrect statement of the law as the forfeiture may not 

be imposed for failure to pay court costs, only the fines. Thus, the trial court must 

distinguish the two. However, since the trial court failed to enter the judgment 
Case No. 7-13-07 

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ordering the forfeiture as discussed above, this issue is moot and we need not rule 

upon it. App.R. 12(A)(1)(c). 

{¶9} Having found error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Napoleon Municipal Court of Henry 

County is reversed and the matter is remanded for further proceedings consistent 

with this opinion. 

Judgment Reversed and 

Cause Remanded 

PRESTON and SHAW, J.J., concur. 

/jlr