BUTTLER, P. J.
Defendant appeals his convictions of promoting gambling and possession of gambling devices, ORS 167.122 and 167.147, each of which is a Class A misdemeanor. Of the four assignments of error, the first two and part of the third are answered by State v. Wright, 21 Or App 659, 537 P2d 130, rev den (1975),1 which defendant contends should be overruled. We adhere to that decision. The remaining part of defendant’s third contention — that the trial court erred in failing to give his requested instructions explaining the elements of ORS 167.147,2 — is answered by the fact that the instruction given by the court3 sufficiently covered the law and was "but an attenuated version of the requested charge.”4 State v. Forsyth, 20 Or App 624, 634, [205]*205533 P2d 176, rev den (1975). We consider in detail only the fourth assignment of error: that the trial court unlawfully sentenced defendant under ORS 161.635(4). Because we agree with that contention, we affirm in part, reverse in part and remand for sentencing.
Viewed most favorably to the state, the record discloses that defendant was the owner of a tavern which contained 11 "free play” machines, including blackjack and poker video machines and pinball machines.5 A "free play” machine is a game played by inserting a coin for one game,6 or as many as eight coins for eight games, and then trying to "beat” the machine, which entitles the winner to one or more free games. On 10 of the 11 machines in defendant’s tavern, however, a winner could be paid in cash for the accumulated free games instead of playing out the games on the machine.7
During the months of August and September, 1979, undercover police officers visited the defendant’s tavern and played the machines regularly. On August 28, 1979, one of the officers was paid $12.50 in cash by defendant’s employee for winning "in excess of” 50 free games on the blackjack machines. On September 5, 1979, the defendant paid cash to the same officer for winning 140 free games and paid cash to another officer for winning 50 free games. After each winning, the officer observed the defendant or one of his employees jotting down the "pay-off” transaction in a spiral notebook. Subsequently, the 11 machines were seized from the tavern under a valid search warrant, and the defendant was indicted.
[206]*206Defendant’s contention that the sentence imposed by the trial court under ORS 161.635(4) was unlawful presents two questions: (1) whether defendant may be fined based upon gains derived from activity similar to that constituting the offenses of which he was convicted, other than on the date or dates charged in the indictment,8 and (2) what "gain” means as defined in ORS 161.625(4)?
Following defendant’s conviction of both offenses, the trial court held a special hearing preliminary to sentencing defendant under ORS 161.635(4), which allows a court to fine a defendant up to twice the amount of moneys wrongfully "gained” from the commission of the offense in lieu of the maximum fine of $1,000 provided in ORS 161.635(l)(a)9 for Class A misdemeanors. See Oregon Criminal Code, Commentary § 78, at 72.
[207]*207At that hearing, the trial court admitted evidence of moneys received and expenses paid by defendant for the year 1979. From that evidence, the court determined that defendant’s gain exceeded $5,000 and doubled that amount in assessing defendant a fine of $10,000. The state contends the trial court’s assessment was proper, because the legislature intended, by permitting the alternative fine, to insure that a defendant not profit from his unlawful conduct and to deter the repetition of the same offense by making it economically unrewarding. Even accepting the state’s contention, it does not follow that defendant may be fined for offenses with which he was not charged.
The indictment against defendant charged him with two gambling offenses, both of which were alleged to have occurred "on or about the 5th day of September, 1979.” He was found guilty only of these two offenses. Thus, at sentencing, the trial court had the option of fining defendant under ORS 161.635(l)(a) or (4). Under subsection(l)(a), defendant could have been fined up to $1,000 for each offense,10 a total of $2,000. If the state is correct that the trial court could treat the offense as a continuing one for which a fine may be assessed for each violation in the continuum, defendant could be fined $2,000 per day during the period in which the continuing offense was committed. Similarly, under ORS 161.615(1) defendant could be sentenced to imprisonment for one year for each offense — presumably two years here.
We do not believe it can be contended seriously that defendant could have been sentenced to imprisonment, or to a traditional fine, based upon the offenses of which he was convicted, and then the term and fine be multiplied by the number of days during which similar, uncharged, offenses were committed within the statute of limitations. If that could have been done, the state could have saved itself and the trial court a lot of trouble and expense in attempting to establish defendant’s illegal gain and, at the same time, have arrived at a substantially greater fine.
[208]*208However, to allow such a sentencing scheme would not only violate the apparent intention11 of the legislature embodied in the sentencing statutes, but would offend the most basic notions of due process which demand, at the very least, that a person receive fair notice of all the offenses with which he is charged. It seems far more probable that the legislature intended that the alternative fine be available to the sentencing court in circumstances where the traditional liquidated fine is inadequate to penalize the defendant for the offense of which he has been convicted.
The state analogizes ORS 161.635(4) to the statutory provisions permitting the sentencing court to impose restitution as a part of the sentence. ORS 137.106.
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BUTTLER, P. J.
Defendant appeals his convictions of promoting gambling and possession of gambling devices, ORS 167.122 and 167.147, each of which is a Class A misdemeanor. Of the four assignments of error, the first two and part of the third are answered by State v. Wright, 21 Or App 659, 537 P2d 130, rev den (1975),1 which defendant contends should be overruled. We adhere to that decision. The remaining part of defendant’s third contention — that the trial court erred in failing to give his requested instructions explaining the elements of ORS 167.147,2 — is answered by the fact that the instruction given by the court3 sufficiently covered the law and was "but an attenuated version of the requested charge.”4 State v. Forsyth, 20 Or App 624, 634, [205]*205533 P2d 176, rev den (1975). We consider in detail only the fourth assignment of error: that the trial court unlawfully sentenced defendant under ORS 161.635(4). Because we agree with that contention, we affirm in part, reverse in part and remand for sentencing.
Viewed most favorably to the state, the record discloses that defendant was the owner of a tavern which contained 11 "free play” machines, including blackjack and poker video machines and pinball machines.5 A "free play” machine is a game played by inserting a coin for one game,6 or as many as eight coins for eight games, and then trying to "beat” the machine, which entitles the winner to one or more free games. On 10 of the 11 machines in defendant’s tavern, however, a winner could be paid in cash for the accumulated free games instead of playing out the games on the machine.7
During the months of August and September, 1979, undercover police officers visited the defendant’s tavern and played the machines regularly. On August 28, 1979, one of the officers was paid $12.50 in cash by defendant’s employee for winning "in excess of” 50 free games on the blackjack machines. On September 5, 1979, the defendant paid cash to the same officer for winning 140 free games and paid cash to another officer for winning 50 free games. After each winning, the officer observed the defendant or one of his employees jotting down the "pay-off” transaction in a spiral notebook. Subsequently, the 11 machines were seized from the tavern under a valid search warrant, and the defendant was indicted.
[206]*206Defendant’s contention that the sentence imposed by the trial court under ORS 161.635(4) was unlawful presents two questions: (1) whether defendant may be fined based upon gains derived from activity similar to that constituting the offenses of which he was convicted, other than on the date or dates charged in the indictment,8 and (2) what "gain” means as defined in ORS 161.625(4)?
Following defendant’s conviction of both offenses, the trial court held a special hearing preliminary to sentencing defendant under ORS 161.635(4), which allows a court to fine a defendant up to twice the amount of moneys wrongfully "gained” from the commission of the offense in lieu of the maximum fine of $1,000 provided in ORS 161.635(l)(a)9 for Class A misdemeanors. See Oregon Criminal Code, Commentary § 78, at 72.
[207]*207At that hearing, the trial court admitted evidence of moneys received and expenses paid by defendant for the year 1979. From that evidence, the court determined that defendant’s gain exceeded $5,000 and doubled that amount in assessing defendant a fine of $10,000. The state contends the trial court’s assessment was proper, because the legislature intended, by permitting the alternative fine, to insure that a defendant not profit from his unlawful conduct and to deter the repetition of the same offense by making it economically unrewarding. Even accepting the state’s contention, it does not follow that defendant may be fined for offenses with which he was not charged.
The indictment against defendant charged him with two gambling offenses, both of which were alleged to have occurred "on or about the 5th day of September, 1979.” He was found guilty only of these two offenses. Thus, at sentencing, the trial court had the option of fining defendant under ORS 161.635(l)(a) or (4). Under subsection(l)(a), defendant could have been fined up to $1,000 for each offense,10 a total of $2,000. If the state is correct that the trial court could treat the offense as a continuing one for which a fine may be assessed for each violation in the continuum, defendant could be fined $2,000 per day during the period in which the continuing offense was committed. Similarly, under ORS 161.615(1) defendant could be sentenced to imprisonment for one year for each offense — presumably two years here.
We do not believe it can be contended seriously that defendant could have been sentenced to imprisonment, or to a traditional fine, based upon the offenses of which he was convicted, and then the term and fine be multiplied by the number of days during which similar, uncharged, offenses were committed within the statute of limitations. If that could have been done, the state could have saved itself and the trial court a lot of trouble and expense in attempting to establish defendant’s illegal gain and, at the same time, have arrived at a substantially greater fine.
[208]*208However, to allow such a sentencing scheme would not only violate the apparent intention11 of the legislature embodied in the sentencing statutes, but would offend the most basic notions of due process which demand, at the very least, that a person receive fair notice of all the offenses with which he is charged. It seems far more probable that the legislature intended that the alternative fine be available to the sentencing court in circumstances where the traditional liquidated fine is inadequate to penalize the defendant for the offense of which he has been convicted.
The state analogizes ORS 161.635(4) to the statutory provisions permitting the sentencing court to impose restitution as a part of the sentence. ORS 137.106. However, restitution may be imposed only for "criminal activities,” defined as "* * * any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.” ORS 137.103(1). Here, defendant has neither been convicted of offenses other than those charged to have been committed on or about September 5, 1979, nor has he admitted other criminal conduct.12 See State v. Cox, 35 Or App 169, 581 P2d 104 (1978); State v. Armstrong, 44 Or App 219, 605 P2d 736, rev den 289 Or 45 (1980); State v. Boswell, 52 Or App 535, 628 P2d 763, rev den 291 Or 419 (1981).
Accordingly, we hold that defendant may not be sentenced, whether by fine or imprisonment, for offenses [209]*209other than those of which he was convicted, which were committed on or about September 5, 1979. The question remains as to how defendant’s gain is determined under ORS 161.635(4) for the purpose of assessing a fine for those offenses.
The state apparently contends that gain is determined by taking the gross receipts from the gambling devices and subtracting the amount of money paid to winners. Defendant, on the other hand, contends that he is entitled to deduct from gross receipts a pro rata portion of all business expenses he incurred in operating his tavern — including rent, utilities, taxes, depreciation and the like. We conclude that both parties are wrong.
The provisions of ORS 161.635(4) refer us to ORS 161.625(4), which defines "gain”:
"(4) As used in this section, 'gain’ means the amount of money or the value of property derived from the commission of the felony, less the amount of money or the value of property returned to the victim of the crime or seized by or surrendered to lawful authority before the time sentence is imposed. 'Value’ shall be determined by the standards established in ORS 164.115.”
The statute does not define gain as net profits, but rather as "the amount of money * * * derived from the commission of the [crime].” With respect to the promotion of gambling, we take that phrase to mean the gross receipts derived from the slot machines used illegally. The statute then allows only two deductions from that amount: (1) the amount of money or the value of property returned to the victim, and (2) the amount of money or the value of property seized by lawful authority.
Taking the second deduction first, the record discloses that police seized five machines owned by defendant during the execution of the search warrant. At the sentencing hearing, defendant testified that those machines had a replacement value of $17,000. Under ORS 164.115,13 however, replacement value may be used only if the fair market value of the property at the time and place of the crime [210]*210cannot be ascertained. There is no evidence for that predicate. Further, we do not know which, if any, of those machines were returned to defendant and which were or would be forfeited to the state.14 ORS 167.162. The police seized $394.50 in cash at the time the search warrant was executed; again, however, it is unclear whether that money will be returned to defendant.
A more problematical question is presented with respect to the first deduction: whether money paid by defendant to "winners” on his machines falls within the phrase "money * * * returned to the victim” and thus is subject to being offset under ORS 161.625(4). Ordinarily, a winner would not be considered a victim, although he could be if he pays in more than he wins. Because gambling involves a person’s risking "* * * something of value upon the outcome of or contest of chance * * *,” ORS 167.117(4), and the one taking the risk is characterized as a "player,” ORS 167.117(8), rather than a victim, we conclude that the statute does not contemplate that payoffs or winnings be treated as money returned to the victim.
Because the trial court improperly applied ORS 161.635(4), the case must be remanded for resentencing. Given our interpretation of that statute, the trial court may wish to proceed under subsection (1) of ORS 161.635 rather than under subsection (4).
Affirmed in part; reversed in part, and remanded for sentencing.