State v. Sprang

• Citation: 137 Or.App. 418,904 P.2d 1092
• Parties: STATE of Oregon, Respondent, v. Phillip John SPRANG, III, Appellant. 93050884; CA A83827.
• Decision Date: 25 October 1995
• Court: Court of Appeals of Oregon

Page 1092

904 P.2d 1092

137 Or.App. 418

STATE of Oregon, Respondent, v. Phillip John SPRANG, III, Appellant.

93050884; CA A83827.

Court of Appeals of Oregon.

Argued and Submitted Aug. 31, 1995.

Decided Oct. 25, 1995.

Eric Johansen, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. On the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Stephanie S. Andrus, Assistant Attorney General.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LEESON, Judge.

Defendant, a building contractor, was convicted on three counts of aggravated theft in the first degree, ORS 164.057, for misappropriating money he had received to perform work on the residences of three victims. As part of his sentence, the trial court ordered that he make restitution to the victims. ORS 137.106. Defendant assigns error to that ruling, claiming that a preconviction discharge in bankruptcy of his civil debt to the victims bars the restitution order.

In State v. Davis, 116 Or.App. 607, 610, 843 P.2d 460 (1992), we applied Kelly v. Robinson, 479 U.S. 36, 50, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), to hold that a chapter 7 discharge in bankruptcy does not discharge the obligation to make restitution that is imposed as part of a criminal sentence. ¹ It is not relevant whether the discharge in bankruptcy occurred after the restitution order, as in Kelly, or before the restitution order, as in Davis. See State v. Moriarty, 87 Or.App. 465, 470, 742 P.2d 704, rev. den. 304 Or. 547, 747 P.2d 998 (1987) (statute does not require that civil damages be recoverable at the time restitution is imposed).

Affirmed.

1 Defendant does not specify the chapter under which he filed for bankruptcy. In Kelly, the Supreme Court held that restitution ordered by a state criminal court falls within the exceptions to chapter 7 discharge specified at 11 USC § 523(a)(7). 479 U.S. at 53, 107 S.Ct. at 363. Subsequently, the Criminal Victims Protection Act of 1990, Pub L 101-581, 104 Stat 2865, prevented the discharge of a restitution order under chapter 13 of the bankruptcy code. 11 USC § 1328(a).