State v. Smith

Court of Appeals of Oregon

State v. Smith

763 P.2d 419, 93 Or. App. 639, 1988 Ore. App. LEXIS 1720

CourtCourt of Appeals of Oregon

DecidedNovember 2, 1988

DocketB70-396; CA A44828

StatusPublished

Cited by1 cases

This text of 763 P.2d 419 (State v. Smith) 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. Smith, 763 P.2d 419, 93 Or. App. 639, 1988 Ore. App. LEXIS 1720 (Or. Ct. App. 1988).

Pincite

Opinion

RICHARDSON, P. J.

Defendant appeals his conviction, after a trial to the court on stipulated facts, for criminal mischief in the third degree. ORS 164.345. The court placed him on five years probation; one condition of probation is that he pay restitution of $405. Defendant’s sole contention is that the trial court failed to consider his financial resources before imposing restitution.

The state contends that defendant’s assignment of error is not reviewable under ORS 138.040, which it argues limits review of a sentence to whether it exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. In State v. Carmickle, 307 Or 1, 762 P2d 290 (1988), the court concluded that probation is not a “sentence” as the term sentence is used in ORS 138.040. It held “that an order of probation is appealable as a judgment on conviction and the appeal or review is not limited,” 307 Or at 7, as the state argues. Consequently, whether the trial court properly imposed restitution is reviewable.

Defendant argues that, even though he raised the issue, the court did not consider his financial resources or his ability to pay restitution, as required by ORS 137.106. The state concedes that, if the issue is reviewable, the record does not show that the trial court followed the dictates of the statute. State v. Barnes, 58 Or App 516, 648 P2d 1306 (1982). We agree.

Order of restitution vacated; remanded for reconsideration.

Free access — add to your briefcase to read the full text and ask questions with AI

RICHARDSON, P. J.

Defendant appeals his conviction, after a trial to the court on stipulated facts, for criminal mischief in the third degree. ORS 164.345. The court placed him on five years probation; one condition of probation is that he pay restitution of $405. Defendant’s sole contention is that the trial court failed to consider his financial resources before imposing restitution.

The state contends that defendant’s assignment of error is not reviewable under ORS 138.040, which it argues limits review of a sentence to whether it exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. In State v. Carmickle, 307 Or 1, 762 P2d 290 (1988), the court concluded that probation is not a “sentence” as the term sentence is used in ORS 138.040. It held “that an order of probation is appealable as a judgment on conviction and the appeal or review is not limited,” 307 Or at 7, as the state argues. Consequently, whether the trial court properly imposed restitution is reviewable.

Defendant argues that, even though he raised the issue, the court did not consider his financial resources or his ability to pay restitution, as required by ORS 137.106. The state concedes that, if the issue is reviewable, the record does not show that the trial court followed the dictates of the statute. State v. Barnes, 58 Or App 516, 648 P2d 1306 (1982). We agree.

Order of restitution vacated; remanded for reconsideration.

Cite This Page — Counsel Stack

Bluebook (online)

763 P.2d 419, 93 Or. App. 639, 1988 Ore. App. LEXIS 1720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-orctapp-1988.

Opinion

Related

Cite This Page — Counsel Stack