268 P.3d 679
Or. Ct. App.2011Background
- In 2008 a stalking protective order prohibited defendant from certain contact with a high school student, B, including contact near B's family.
- In October 2008 defendant went to the high school of B's sister, M, and took photographs of M.
- Defendant was convicted of violating the protective order and trespass and sentenced to 90 days of probation.
- As a condition of probation, the court ordered forfeiture of the camera used to take the pictures.
- ORS 161.045(4) bars forfeiture absent an express statutory provision; the state relied on ORS 137.540(2) allowing probation conditions reasonably related to the crime or probationer's needs.
- The court found no statute expressly authorizing camera forfeiture as a probation condition; trial court erred in ordering the forfeiture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether forfeiture of the camera as a probation condition is authorized. | State contends ORS 137.540(2) permits related forfeiture. | Olson argues no statute expressly authorizes forfeiture of his property as a probation condition. | No statutory authorization; reversed for resentencing. |
Key Cases Cited
- State v. Griffin, 69 Or.App. 199 (Or.App. 1984) (forfeiture not authorized under prior probation statutes)
- State v. Wills, 93 Or.App. 322 (Or.App. 1988) (no statutory authorizing forfeiture as a probation condition)