State v. Gammond

Court of Appeals of Oregon

State v. Gammond

704 P.2d 1154, 75 Or. App. 27, 1985 Ore. App. LEXIS 3517

CourtCourt of Appeals of Oregon

DecidedAugust 14, 1985

Docket36113; CA A32626

StatusPublished

Cited by3 cases

This text of 704 P.2d 1154 (State v. Gammond) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Gammond, 704 P.2d 1154, 75 Or. App. 27, 1985 Ore. App. LEXIS 3517 (Or. Ct. App. 1985).

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Opinion

*29 ROSSMAN, J.

Defendant pled guilty to the misdemeanor of negotiating a bad check. ORS 165.065. Imposition of sentence was suspended and she was placed on probation for five years on the condition that she obtain a loan against her house within six months in order to pay restitution of $3,880.95 for 29 bad checks. Although she accepts the condition that she pay restitution, she contends that the trial court erred in specifically directing her to borrow money against her house in order to satisfy that condition. We agree and modify the order.

The general rule is that a condition of probation that is not related to the offense or which does not promote safety or rehabilitation is not permitted. State v. Jacobs, 71 Or app 560, 692 P2d 1387 (1984); see also State v. Martin, 282 Or 583, 580 P2d 536 (1978). Here, there can be no dispute that restitution is appropriate. It was also proper for the sentencing judge to consider that defendant had a substantial equity in her house when he fashioned the restitution order. Under the pertinent portion of the restitution statute, ORS 137.106(2)(a), the trial court is required to consider

“[t]he financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant.”

Moreover, given defendant’s apparent ability to pay, it was reasonable to impose a six-month deadline for her to complete restitution. See ORS 137.106(2)(b). In the light of her equity in the house, her failure to make restitution in six months could certainly constitute a probation violation.

However, requiring her to satisfy the order by borrowing against her house from a third party, who is obviously outside the jurisdiction of the court, was not proper. That condition is not “related to the offense” she committed and does not “promote safety or rehabilitation.” Accordingly, we modify the restitution order to delete the requirement that she borrow money against her house.

Restitution order modified to delete provision that defendant obtain loan against her house; affirmed in all other respects.

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*29 ROSSMAN, J.

Defendant pled guilty to the misdemeanor of negotiating a bad check. ORS 165.065. Imposition of sentence was suspended and she was placed on probation for five years on the condition that she obtain a loan against her house within six months in order to pay restitution of $3,880.95 for 29 bad checks. Although she accepts the condition that she pay restitution, she contends that the trial court erred in specifically directing her to borrow money against her house in order to satisfy that condition. We agree and modify the order.

The general rule is that a condition of probation that is not related to the offense or which does not promote safety or rehabilitation is not permitted. State v. Jacobs, 71 Or app 560, 692 P2d 1387 (1984); see also State v. Martin, 282 Or 583, 580 P2d 536 (1978). Here, there can be no dispute that restitution is appropriate. It was also proper for the sentencing judge to consider that defendant had a substantial equity in her house when he fashioned the restitution order. Under the pertinent portion of the restitution statute, ORS 137.106(2)(a), the trial court is required to consider

“[t]he financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant.”

Moreover, given defendant’s apparent ability to pay, it was reasonable to impose a six-month deadline for her to complete restitution. See ORS 137.106(2)(b). In the light of her equity in the house, her failure to make restitution in six months could certainly constitute a probation violation.

However, requiring her to satisfy the order by borrowing against her house from a third party, who is obviously outside the jurisdiction of the court, was not proper. That condition is not “related to the offense” she committed and does not “promote safety or rehabilitation.” Accordingly, we modify the restitution order to delete the requirement that she borrow money against her house.

Restitution order modified to delete provision that defendant obtain loan against her house; affirmed in all other respects.

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Bluebook (online)

704 P.2d 1154, 75 Or. App. 27, 1985 Ore. App. LEXIS 3517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gammond-orctapp-1985.

Opinion

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