State v. Smith
| Decision Date | 24 March 1993 |
| Citation | 852 P.2d 934,120 Or.App. 438 |
| Parties | STATE of Oregon, Respondent, v. Ross Sterling SMITH, Appellant. 91-930-CR, 91-931-CR, 91-932-CR; CA A72283 (Control), CA A72284, CA A72285. . On Respondent's Petition for Reconsideration |
| Court | Oregon Court of Appeals |
Theodore Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Jonathan H. Fussner, Asst. Atty. Gen., Salem, for petition.
Before ROSSMAN, P.J., and DE MUNIZ and LEESON, JJ.
DE MUNIZ, Judge.
The state petitions for review of our opinion, 116 Or.App. 558, 842 P.2d 805 (1992), which we treat as a petition for reconsideration. ORAP 9.15(1). We allow the petition and adhere to our opinion.
The state challenges our holding that vacated compensatory fines to the three rape victims of defendant's crimes. It argues that we incorrectly interpreted the compensatory fine statute, ORS 137.101, 1 in concluding that only a victim who has suffered "pecuniary damages" is entitled to a compensatory fine. Under the state's interpretation, although there was no evidence that established pecuniary loss to the victims, the fact that the victims "may well have" a remedy by civil action authorizes a compensatory fine under ORS 137.101(1).
In State v. Barkley, 315 Or. 420, 846 P.2d 390 (1993), the Supreme Court discussed ORS 137.101. The court disagreed with our conclusion that the victim had to have suffered a direct physical injury for payment of a compensatory fine. However, it also held that there are "two other hurdles * * * to be cleared before a sentencing court orders a compensatory fine in a particular case." 315 Or. at 437, 846 P.2d 390. The person injured has to have a remedy by civil action, and the court must determine that the person has suffered "pecuniary damages" as defined by ORS 137.103(2). 2
The state does not explain why Barkley does not require that pecuniary damages be shown here. In the light of the Supreme Court's clear statement that such a loss is one of the "hurdles" before imposition of a compensatory fine, we adhere to our holding that the fines here must be vacated. 3
Reconsideration allowed; opinion adhered to.
1 ORS 137.101(1) provides:
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