State v. Cox
| Decision Date | 24 June 1992 |
| Parties | STATE of Oregon, Respondent, v. Harold Kenneth COX, Appellant. CC90-1096; CA A65911. |
| Court | Oregon Court of Appeals |
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.
Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Janet A. Klapstein, Asst. Atty. Gen., Salem.
Before WARREN, P.J., and RIGGS and EDMONDS, JJ.
Defendant appeals his convictions for burglary in the first degree and theft in the first degree. He assigns as error the trial court's order of restitution. He argues that the trial court did not consider his financial resources and ability to pay as required by ORS 137.106. We agree and remand for resentencing.
After a jury convicted defendant, the trial court sentenced him to 18 months in prison with 36 months of post-prison supervision. The trial court also ordered defendant to pay $5,000 in restitution to the victim. The state acknowledges that the trial court did not consider defendant's financial resources or his ability to pay on the record. The state suggests, however, that defendant did not formally object to the order of restitution and so waived his right to appellate review of that order. State v. Carpenter, 101 Or.App. 489, 791 P.2d 145, rev. den. 310 Or. 393, 798 P.2d 672 (1990). We read the record differently and conclude that defendant adequately raised the issue of his financial resources and inability to pay at his sentencing hearing.
At the sentencing, defendant's counsel said to the court: "As to the restitution, Your Honor, the client indicates, you know, he has no ability to pay any restitution * * *." The colloquy then turned to defendant's prison term and post-prison supervision. At the end of the hearing, when the court reiterated the restitution order, defendant said: "Good luck, that's all I can say." The trial court's only response was: "Well, we hope for something." Defendant adequately raised the issue and preserved it for appeal. 1
Convictions affirmed; order of restitution vacated; remanded for resentencing.
1 We need not determine whether "restitution" is included as part of the sentence under the guidelines, see OAR 253-09-003, and is therefore reviewable under ORS 138.222, or whether it is reviewable as part of a disposition that imposes a...
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State v. Gray
...Or.App. 416, 833 P.2d 321 (1992); State v. Jones, 113 Or.App. 425, 833 P.2d 320 (1992); see also ORS 138.222(4)(a); State v. Cox, 113 Or.App. 528, n. 1, 833 P.2d 336 (1992). The state argues that the error was not preserved, because defendant made no objection in the trial court. We have au......
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State v. Lewis
...We review to determine whether restitution was imposed consistently with the statutory requirements. State v. Cox, 113 Or.App. 528, 530 n. 1, 833 P.2d 336 (1992); State v. Anderson, 113 Or.App. 416, 418, 833 P.2d 321 ORS 137.106(1) provides, in part: "(1) When a person is convicted of crimi......