State v. Fisher

804 P.2d 517, 105 Or. App. 345, 1991 Ore. App. LEXIS 124, 1991 WL 5068

• Court: Court of Appeals of Oregon
• Decided: January 23, 1991
• Docket: C87-11-36590; CA A49640
• Status: Published

Opinions

RIGGS, J.

Defendant was convicted for delivery of a controlled substance. ORS 475.992. He assigns error to the trial court’s order of restitution. We remand for resentencing.

Defendant pleaded no contest and was placed on probation for five years. At the sentencing and restitution hearings, he presented evidence about his financial situation, employment and debts. The Presentence Investigation Report recommended, among other things, that defendant pay restitution to the owner of the house in which the drug was manufactured¹ and that he also pay a $1,000 fine.

Defendant’s counsel requested that the proposed fine be reduced to $500, because defendant had no financial resources and had $20,000 in unpaid medical bills. The trial court agreed to the $500 fine and ordered that, in addition, defendant pay $7,100 in restitution, at which point this exchange occurred:

“COUNSEL: [I] would ask the Court to consider a couple of things; one of which is that [defendant] has been ordered to pay a $500 fine. Perhaps the Court would prefer to have him start on restitution [rather] than to first pay the fine.

“At this point, his probation officer doesn’t feel that he is able to make substantial payments toward anything but a fine. So I don’t know if the Court would consider that.

“THE COURT: Well, I’ll leave it to the discretion of the probation officer * *

Defendant argues that the trial court’s restitution order is void, because it failed to make findings on the record about his ability to pay, which he argues is required by ORS 137.106(2), and that he is unable to pay the amount of restitution ordered.

The state responds, first, that, although defendant objected to the amount of restitution ordered, “he did not assert that he would never be able to pay it.” Failure to make that particular argument is not fatal. State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988). He sufficiently raised the issue of the amount of restitution that should be imposed and apprised the trial court of his objection.

The state next contends that the trial court adequately considered defendant’s ability to pay.² It claims that the court’s decision to leave the resolution of defendant’s financial problem in paying the restitution and the fine concurrently to the probation officer “reflects that the court considered defendant’s potential difficulties in satisfying his liabilities but believed that a repayment schedule could be arranged.” We disagree. Before imposing restitution, a trial court must consider a defendant’s financial resources, other obligations, the burden that restitution would impose and the deterrent or rehabilitative effect of the sentence. ORS 137.106(2);³ State v. Dillon, 292 Or 172, 180-81, 637 P2d 602 (1981). The record does not show that the court considered those factors in imposing restitution. ORS 137.106(2). The trial court’s delegation of the payment schedule to the probation officer does not mean that it considered the appropriate factors. Accordingly, we remand for resentencing.⁴

Conviction affirmed; remanded for resentencing.

1 Defendant admitted that he had allowed methamphetamine to be manufactured on the premises.

2 The state also argues that the record supports the restitution order. Because we conclude that the court did not take into account the statutory factors, we need not consider whether there was sufficient evidence in the record that might have supported the order.

3 ORS 137.106(2) provides:

“In determining whether to order restitution which is complete, partial or nominal, the court shall take into account:

“(a) The financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant;

“(b) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; and

“(c) The rehabilitative effect on the defendant of the payment of restitution and the method of payment.”

4 Defendant’s other arguments do not warrant discussion.