State v. Gruver
247 Or. App. 8
Or. Ct. App.2011Background
- Defendant was convicted by a jury of first-degree theft in a department-store jewelery heist.
- At sentencing, the state sought restitution of $4,179.59, itemized as $3,809.99 for damaged jewelry and $369 for a plumbing bill.
- Evidence showed value of stolen jewelry and that packaging drain in a toilet caused toilet damage; some jewelry was recovered damaged.
- Defendant did not object to the restitution or its amount at sentencing.
- The trial court awarded restitution under ORS 137.106, based on the restitution schedule and trial testimony.
- On appeal, defendant argues the amount and evidence supporting restitution were insufficient; the issue is unpreserved but argued as plain error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the restitution award is plain error given alleged lack of evidence | State asserts evidence supports the award; no plain error. | Gruver contends there was no evidentiary support for any restitution amount. | Not plain error; some evidence supports the award. |
| Whether failure to object to restitution precludes appellate review | State argues waiver under ORS 137.106(5) bars review. | Gruver argues the failure to object should not bar review; plain-error review allowed. | Review is available; not precluded by failure to object. |
| Whether current ORS 137.106(1)-(2) requiring pre-sentencing evidence affects plain-error analysis | State relies on statute as basis for the award. | Gruver emphasizes statutory process and that evidence existed to establish entitlement. | Statutory framework supports the award; no plain error. |
Key Cases Cited
- State v. Harrington, 229 Or.App. 473 (2009) (plain-error review for restitution when no evidentiary support)
- IvIe, 38 Or.App. 453 (1979) (entitlement to hearing on amount of restitution)
- Keys, 41 Or.App. 379 (1979) (waiver concept tied to sentencing objections to restitution)
- Carpenter, 101 Or.App. 489 (1990) (restitution hearing rights under prior statute)
- State v. Sandoval, 342 Or. 506 (2007) (statutory interpretation of restitution framework)
- State ex rel. Dept. of Human Services v. J. N., 225 Or.App. 139 (2009) (statutory findings under restitution-related statutes reviewable)
- State v. Gaines, 346 Or. 160 (2009) (statutory interpretation principles in plain-error review)
- PGE v. Bureau of Labor and Industries, 317 Or. 606 (1993) (statutory interpretation and reform of remedies)