State v. Dorsey
259 Or. App. 441
Or. Ct. App.2013Background
- Defendant worked 85 days as a cashier at Thrifty Market in 2010; surveillance showed thefts on July 21–22 and August 5.
- Information charged first-degree theft “on or about July 21, 2010” for an amount > $1,000.
- Defendant’s plea petition admitted theft occurring “on or between July 21, 2010 to August 5, 2010.”
- After conviction, the state sought large restitution (about $43,070) based on alleged ongoing daily theft over much of the employment period; defense disputed the amount.
- The trial court awarded $33,995 by averaging observed takings and multiplying by 65 days (excluding first 20 days of employment).
- Defendant appealed, arguing the court lacked statutory authority to order restitution for conduct beyond the 16-day period she pleaded to; the appellate court found plain error and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution may be ordered for losses outside the temporal scope of the conduct to which defendant pleaded guilty | State argued information’s open-ended amount and “on or about” date permitted restitution covering longer period | Defendant argued plea limited admitted criminal conduct to July 21–Aug 5, so restitution beyond that period is unauthorized | Court held restitution for conduct outside the plea-admitted period was unlawful; plain error warranted correction and remand |
| Whether defendant forfeited the legal contention by not raising it below | State argued issue unpreserved because defendant challenged amount but not legal authority under Howett | Defendant relied on challenge to amount and loss estimate at hearing | Court applied plain-error review, found the error of law obvious and apparent on the record, and exercised discretion to correct it |
| Standard for ordering restitution under statutes | State relied on factual proof of larger loss caused by defendant’s conduct | Defendant relied on statutory limits—restitution only for criminal activities defendant was convicted of or admitted | Court reaffirmed rule: restitution limited to pecuniary damages caused by crimes of conviction or other criminal conduct admitted by defendant |
| Whether remand is appropriate remedy | State implied affirmance was proper given evidence of larger losses | Defendant sought vacatur of excessive restitution and resentencing | Court remanded for resentencing; otherwise affirmed judgment |
Key Cases Cited
- State v. Howett, 184 Or. App. 352 (Or. Ct. App. 2002) (trial court may not order restitution for losses arising from unconvicted or unadmitted conduct)
- State v. Seggerman, 167 Or. App. 140 (Or. Ct. App. 2000) (defendant cannot be required to pay restitution for pecuniary damages from conduct not convicted or admitted)
- State v. Brown, 310 Or. 347 (Or. 1990) (plain-error review framework)
- Peeples v. Lampert, 345 Or. 209 (Or. 2008) (preservation requirement and what suffices to present an issue to the trial court)
- Ailes v. Portland Meadows, Inc., 312 Or. 376 (Or. 1991) (factors for exercising appellate discretion to consider unpreserved error)