State v. Tippetts
239 Or. App. 429
Or. Ct. App.2010Background
- Defendant Tippett was convicted in two consolidated cases involving separate victims and multiple crimes.
- The trial court ordered restitution for counseling costs for each victim and for each victim's mother under ORS 137.106(1).
- Defendant did not object at trial to restitution but now claims plain error because the record lacks evidence that victims or mothers sought or were recommended counseling, i.e., lack of economic damages.
- The State concedes there is no evidence of economic damages supporting restitution as imposed.
- The court treated the lack of evidence as plain error and exercised discretion to correct a significant restitution award.
- On remand, the court may conduct a new evidentiary hearing to decide whether restitution should be imposed again.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence of economic damages supported restitution under ORS 137.106(1). | State concedes no economic damages evidence. | Tippett contends no evidence supports restitution for counseling. | Plain error; no evidence support; restitution vacated or remanded for new hearing. |
| Proper disposition for restitution error on appeal. | State urges remand for resentencing to permit new evidence. | Tippett argues to vacate restitution without remand to avoid second evidence opportunity. | Remand for resentencing with new evidentiary hearing authorized. |
| Application of Edson and related restitution-remand framework to these cases. | State relies on Edson and subsequent cases permitting remand if evidence can be developed. | Tippett cites Canady and Biscotti to argue for vacatur without remand. | Edson framework controls; remand appropriate; Canady/Biscotti distinguishable. |
Key Cases Cited
- State v. Harrington, 229 Or.App. 473 (2009) (significant restitution not supported by record is plain error; remand allowed)
- State v. Neese, 229 Or.App. 182 (2009) (remand for evidentiary hearing to determine pecuniary loss and restitution amount)
- State v. Donahue, 165 Or.App. 143 (2000) (remand for purposes of resentencing where no evidence of economic harm supports compensatory fine)
- State v. Edson, 329 Or. 127 (1999) (restitution-imposition errors reviewed under ORS 138.222; options limited to remand)
- State v. Powell, 234 Or.App. 589 (2010) (remand for resentencing when restitution imposed without economic damages)
- State v. Canady, 225 Or.App. 299 (2009) (vacating judgments for untimely supplemental restitution; distinguishable here)
- State v. Biscotti, 219 Or.App. 296 (2008) (vacating restitution-related issue due to timing; distinguishable here)
- State v. Thompson, 231 Or.App. 193 (2009) (new evidentiary hearing permitted; state may introduce fresh expenses on remand)