298 P.3d 50
Or. Ct. App.2013Background
- Defendant was convicted of fourth-degree assault and harassment.
- A supplemental judgment imposed restitution of $1,337.27; appeal timeliness was initially held untimely.
- The Oregon Supreme Court decided Mullins (2012), vacating the prior dismissal and remanding for reconsideration.
- On remand, the court held the appeal from the supplemental judgment timely under Mullins and found plain error in imposing restitution.
- The court remanded for resentencing but otherwise affirmed the judgment.
- Undisputed facts: defendant punched the victim, causing injuries; the victim was the site supervisor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the supplemental-judgment appeal | Appellate notice was timely under ORS 138.071(4) per Mullins. | Timeliness failed because notice to defendant/counsel was not established. | Appeal timely; notice begun on actual notice to appellate counsel. |
| Plain error in restitution amount without evidence | Gruver and related cases deny need for a hearing to challenge restitution. | No evidence supported the restitution amount; plain error. | Trial court plainly erred by ordering restitution without evidentiary support. |
| Preservation and review of unpreserved restitution error | Error preserved or reviewable under standards for plain error. | Error not preserved or properly reviewed. | Court may review as plain error; discretion exercised to correct error. |
| Remand for resentencing | Correct the restitution issue within the existing sentence. | Resentencing required due to improper restitution but otherwise affirmed. | Remand for resentencing warranted; otherwise affirmed. |
Key Cases Cited
- State v. Mullins, 352 Or 343 (2012) (timeliness of ORS 138.071(4) notices based on actual notice to defendant or counsel)
- State v. Gruver, 247 Or App 8 (2011) (restitution awards require evidence; plain-error review possible)
- State v. Martinez, 250 Or App 342 (2012) (restitution award requires evidentiary support; plain error if lacking)
- State v. McLaughlin, 243 Or App 214 (2011) (evidence of damages necessary prior to sentencing for restitution)
- Ailes v. Portland Meadows, 312 Or 376 (1991) (discretion to correct unpreserved errors in sentencing)