STATE OF OREGON, Pеtitioner, υ. ROBERT DALE STALHEIM, Respondent.
Supreme Court of Oregon
August 5, 1976
552 P2d 829
Argued April 29, 1976
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cаuse for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Before O‘Connell,* Chief Justice, and McAllister, Denecke,** Holman, Tongue and Howell, Justices.
O‘CONNELL, J.
*Chief Justice when case was argued.
**Chief Justice when case was decided.
This case is before us on a petition by the state for review of the decision of the Court of Appeals. State v. Stalheim, 23 Or App 371, 542 P2d 913 (1975). Defendant was convicted of criminally negligent homicide after the car he was driving struck an oncoming vehicle and killed two people. The court suspended imposition of sentence and placed defendant on probation, one of the сonditions of which was that defendant “make restitution * * * in the sum of $2500.00 * * *” Defendant appealed and the Court of Appeals affirmed the conviction, but remanded the case to the trial court, on the ground that it had improperly imposed restitution as a condition of probation. We granted the state‘s petition for review in order to clarify the law governing restitution or reparation as a condition of probation.
As a condition of probation, defendant was ordered to pay $2,500 restitution to Mr. Mackey, whose wife and daughter wеre killed in the accident. Mr. Mackey himself was not involved in the accident; the payments were to compensate him for the loss of his family. There was no formal judicial hearing to determine the amount of Mr. Mackey‘s loss.1 It appears that the court accepted the amount of restitution suggested by Mr. Mackey‘s attorney in a letter to the trial judge and counsel.
“Make reparation or restitution to the aggrieved party fоr the damage or loss caused by [the] offense, in an amount to be determined by the court.”
The Court of Appeals, in an opinion written by Judge Fort, held that Mr. Mackey was not “the aggreived party” within the meaning of
It must be admitted that the statute is drawn in general terms and is, therefore, susceptible to the broad interpretation urged by the state by which the court would be permitted to allow restitution or reparation in any reasonable amount which would be conducive to the defendant‘s rehabilitation consistent with the protection of the interests of the public. But the statute is equally susceptible to a narrower interpretаtion, limiting its application both as to the persons entitled to receive benefits under it and as to the character of the reparation or restitution which is to be made.
In other jurisdictions, the courts have taken a variety of views ranging from the one extreme limiting restitution to the return of specific property or its value, with recovery limited to the victim of the crime, to the other extreme of permitting compensation for loss, damage or injury to others, not limited to the victim, arising out of the commission of the crime.3 The acceptance of the broad interpretation of the statute urged by the state presents a variety of difficult legal problems. If the statute is interpreted broadly so as to permit the imposition of unliquidated damages, thus including such losses as pain and suffering, decreasеd earning capacity, loss of consortium and the
There are other reasons for removing the adjudication of uncertain losses from the sentencing proceedings. There is a real danger that the defendant may be prejudiced by the introduction of civil damages issues into his criminal trial. At the sentencing proceeding the defendant does not have the benefit of defenses such as contributory negligence or assumption of risk, nor does he receive a jury determination of damages which would be available to him in a civil trial.5 Further, when faced with the alternative of paying what he might regard as an exorbitant measure of dаmages or of going to prison, the defendant might hesitate to argue with an award of restitution or reparation no matter how speculative or unfair it might be or however summary the procedure under which it was imposed.
The legal and practical complexities created by a broad interpretation of
The damage valuation problems we have mentioned are particularly severe when the loss is suffered, as it was in the present case, by the deceased victim‘s family. Moreover, when a defendant is ordered to make reparation to persons other than the direct victim of a crime, the rehabilitative effect of making the offender clearly appreciate the injury caused by his offense would, in our opinion, be significantly diluted. Therefore, we construe “aggrieved party” to refer to the direct victim of a crime, and not to other persons who suffer loss because of the victim‘s death or injury.
Though our limited construction of the statute should simplify the task of determining the proper amount of restitution or reparation in a particular case, if there remains some question as to the amount of the victim‘s loss, the defendant is entitled to a hearing on that issue.8 Our construction of
We recognize that some courts and commentators have advocated a much brоader interpretation of restitution and reparation statutes such as ours, urging that judges should be able to formulate conditions of probation which include the payment of all damages recoverable in a civil trial.10 However, we believe that the benefits which аre claimed for such a broad treatment of our statute are outweighed by the complexities alluded to above.11
Because there are a number of policy considerations which are presented by a broad treatment of the statute, we think that it is advisable to leave these for legislative scrutiny.12 We hold, therefore, that
The decision of the Court of Appeals is affirmed.
TONGUE, J., specially concurring.
I concur in the opinion by the majority and in the reasoning upon which it is based, with one exception.
The rule adopted by the majority properly limits “restitutiоn” and “reparation” to “liquidated or easily measurable damages” payable to the “aggreived party,” but limits that term to “the direct victim of a crime.” I disagree with this further limitation in cases in which the “direct victim” is a child or spouse who has died as a result of a crime.
Thus, if a сhild or married woman is assaulted and if, as a result, medical expenses are incurred, payment of such expenses could be required as a condition of probation, regardless of whether the bills for such expenses would otherwise be payable by the father оr husband of the victim. But if the same victim then died, payment of the same bill for the same medical expenses could not be required.
In my view, it is far more reasonable in cases in which the “victim” of the crime has died as a result of the crime to construe the term “aggrieved party” to include the parents or spouse of the deceased “victim,” although still limiting the “restitution” or “reparation” which may be required to actual out-of-pocket expenses, such as those incurred for ambulance, hospital, medical and funeral expenses for which there is a legal responsibility.1
The intended purpose of
Because, however, the “restitution” ordered by the trial judge in this case in the sum of $2,500 was not based upon a determination of the actual amount of any such out-of-pocket expenses, but was based solely upon the amount suggested in a letter from the attornеy for Mr. Mackey, I agree with the majority that it was improper to require that defendant pay that amount to Mr. Mackey as a condition of defendant‘s probation.