State v. Gaines

798 P.2d 730, 103 Or. App. 646, 1990 Ore. App. LEXIS 1318

Opinions

PER CURIAM

Defendant appeals a judgment of conviction of burglary in the first degree, ORS 164.225, and theft in the first degree. ORS 164.055. The judgment provides, in part:

“As a condition of parole, the defendant is hereby ORDERED to make restitution * * *.”

Defendant assigns as error that the court ordered restitution as a condition of parole. We affirm.

Defendant argues that the court lacks authority to impose restitution as a condition of parole rather than as part of the sentence. The state responds that defendant waived his right to object to the imposition of restitution, because he failed to object at the sentencing hearing. We may, however, consider an error not preserved below, if it is apparent on the face of the record. ORAP 5.45(2). We will do so here. See State v. Vasby, 101 Or App 1, 788 P2d 1024 (1990); State v. Carpenter, 101 Or App 489, 791 P2d 145, rev den 310 Or 393 (1990).

A sentencing court has no authority to order a defendant to pay restitution as a condition of parole, State v. Kipp, 52 Or App 1011, 1014, 630 P2d 394 (1981), and it should not. The court, however, has authority to impose a sentence to pay restitution. ORS 137.106. We interpret the judgment in this case as sentencing defendant to pay restitution but suspending payment until he is paroled. State v. Kipp, supra.

Affirmed.