Vancleave v. Oregon State Penitentiary

Court of Appeals of Oregon

Vancleave v. Oregon State Penitentiary

761 P.2d 1366, 93 Or. App. 326

CourtCourt of Appeals of Oregon

DecidedOctober 5, 1988

Docket11-87-156; CA A46994

StatusPublished

This text of 761 P.2d 1366 (Vancleave v. Oregon State Penitentiary) 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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Vancleave v. Oregon State Penitentiary, 761 P.2d 1366, 93 Or. App. 326 (Or. Ct. App. 1988).

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Opinion

PER CURIAM

Petitioner seeks judicial review of a final order of the Superintendent finding him guilty of violating an institutional rule and imposing restitution and a fine.

There is substantial evidence to support the findings of guilt and the amount of restitution. Petitioner contends that he was entitled to a separate hearing on the question of restitution, relying, by analogy, on ORS 137.106 and State v. Stalheim, 275 Or 683, 552 P2d 829 (1976), which relate to restitution on a criminal conviction. There is no similar requirement relating to prison disciplinary hearings. Petitioner had an opportunity to present evidence and to challenge the state’s evidence; nothing more is required.

Petitioner also argues that the amount of restitution imposed was taken by the Superintendent from his prison account in violation of his due process rights and in breach of the Superintendent’s fiduciary duty. At argument, counsel for both parties acknowledged that the record does not show that the Superintendent had taken any money from petitioner’s account to satisfy the restitution order. Accordingly, that question is not before us.

The imposition of a fine was error. Watson v. OSP, 90 Or App 85, 750 P2d 1188 (1988).

Fine vacated; otherwise affirmed.

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PER CURIAM

Petitioner seeks judicial review of a final order of the Superintendent finding him guilty of violating an institutional rule and imposing restitution and a fine.

There is substantial evidence to support the findings of guilt and the amount of restitution. Petitioner contends that he was entitled to a separate hearing on the question of restitution, relying, by analogy, on ORS 137.106 and State v. Stalheim, 275 Or 683, 552 P2d 829 (1976), which relate to restitution on a criminal conviction. There is no similar requirement relating to prison disciplinary hearings. Petitioner had an opportunity to present evidence and to challenge the state’s evidence; nothing more is required.

Petitioner also argues that the amount of restitution imposed was taken by the Superintendent from his prison account in violation of his due process rights and in breach of the Superintendent’s fiduciary duty. At argument, counsel for both parties acknowledged that the record does not show that the Superintendent had taken any money from petitioner’s account to satisfy the restitution order. Accordingly, that question is not before us.

The imposition of a fine was error. Watson v. OSP, 90 Or App 85, 750 P2d 1188 (1988).

Fine vacated; otherwise affirmed.

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761 P.2d 1366, 93 Or. App. 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vancleave-v-oregon-state-penitentiary-orctapp-1988.

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