State v. New
This text of 830 P.2d 614 (State v. New) 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.
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Defendant appeals his convictions for illegal possession of a game animal. ORS 498.002; ORS 496.992(1). He challenges the portion of the sentence that suspends his hunting privileges and orders him to pay restitution and forfeit his weapon. We affirm the convictions but remand for resentencing.
At a hunting camp, Officer Williams discovered three elk and two deer that had been killed illegally by members of a hunting party. Defendant was cited for and convicted of illegal possession of two of the animals. The state offered no evidence that defendant had killed any of them. The trial court ordered him to pay restitution to the state for the loss of the game animals, ordered him to forfeit his weapon and ordered suspension of his hunting privileges for four years.
Defendant first argues that the trial court had no authority to order restitution, because the state could not have recovered any pecuniary damages against him in a civil action and because there was no “victim” under ORS 137.103 and ORS 137.106. Defendant made no objection when restitution was imposed by the trial court. ORS 137.106(3) provides:
“If the defendant objects to the imposition, amount or distribution of the restitution, the court shall at the time of sentencing allow the defendant to be heard on such issue.”
By failing to exercise a statutory right to be heard, defendant waived his right to challenge the imposition of restitution. State v. Carpenter, 101 Or App 489, 791 P2d 145, rev den 310 Or 393 (1990). We decline to exercise our discretion to consider the assignment of error. ORAP 5.45(2).
Defendant argues that the court erred in ordering forfeiture of his weapon. ORS 496.680(1) provides:
“All wildlife taken by, or in the possession of any person in violation of the wildlife laws, and all guns, boats, traps, fishing apparatus and implements used in angling, hunting or trapping or taking any wildlife in violation of the wildlife laws may be seized by any person authorized to enforce the wildlife laws, and may be forfeited.”
[91]*91The statute provides for the forfeiture of guns only if they are used in taking any wildlife. See State v. Wilson, 105 Or App 20, 803 P2d 769 (1990). The state concedes that there is no evidence that defendant’s weapon was used to kill any of the animals. Although defendant did not object to the order in the trial court, we exercise our discretion to consider the error, because the order exceeds the court’s authority. See State v. Wills, 93 Or App 322, 761 P2d 1365 (1988), rev den 307 Or 611 (1989). The court erred in ordering the forfeiture.
Defendant next argues that the court erred in ordering suspension of his hunting privileges for four years. Each judgment of conviction says “suspension of hunting priviledges [sic] for 4 years * * * judgment herein concurrent with [judgment in other case].” Under ORS 497.435 and ORS 497.415,1 the suspensions are limited to two years for each conviction. Defendant did not object to the order of suspension. However, because the length of the suspension in each judgment exceeds the court’s authority, we exercise our discretion to review the assignment of error and vacate the orders of suspension.
Convictions affirmed; suspension of hunting license and forfeiture of weapon vacated; remanded for resentencing.
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Cite This Page — Counsel Stack
830 P.2d 614, 113 Or. App. 88, 1992 Ore. App. LEXIS 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-new-orctapp-1992.