State v. Stalheim
| Decision Date | 05 August 1976 |
| Citation | 79 A.L.R.3d 969,552 P.2d 829,275 Or. 683 |
| Parties | , 79 A.L.R.3d 969 STATE of Oregon, Petitioner, v. Robert Dale STALHEIM, Respondent. |
| Court | Oregon Supreme Court |
W. Michael Gillette, Sol. Gen., Salem, argued the cause and filed briefs for petitioner. With him on the briefs were Lee Johnson, Atty. Gen., and Rhidian M. M. Morgan, Asst. Atty. Gen., Salem.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Before O'CONNELL,* C.J., and McALLISTER, DENECKE,** HOLMAN, TONGUE and HOWELL, JJ.
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 P.2d 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 conditions 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 were 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.
ORS 137.540(10) authorizes a sentencing court to require as a condition of probation that the defendant shall
'Make reparation or restitution to the aggrieved party for 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 aggrieved party' within the meaning of ORS 137.540(10). Judge Thornton dissented.
The state contends that the restitution order was within the trial court's discretion to impose conditions of probation upon defendant. It is argued that the trial court's authority to fashion probation conditions appropriate to a particular case is limited only by the requirement that the conditions have a rational relationship to the purposes of probation, 2 and that the conditions are not shocking to one's conscience.
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 interpretation, 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, decreased earning capacity, loss of consortium and the like, the trial judge will be forced to make evaluations of losses usually reserved to civil juries. In the usual case, the trial judge will not have the benefit of pleadings which frame the issues nor the testimony of witnesses to develop evidence relevant to the loss resulting from the defendant's wrongdoing. 4 Thus, the trial judge is left in the difficult if not impossible position of having to assign a value to a loss he knows little about. While we customarily rely upon the collective intuition of the civil jury to calculate the amount which should be awarded for pain and suffering and other uncertain losses, and although in some civil cases this function is left to the trial judge sitting without a jury, we find it highly inappropriate to assign this task to a judge presiding over a criminal trial.
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 damages 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 ORS 137.540(10) prompt us to narrowly construe its terms. We construe the term 'restitution' to mean the return of a sum of money, an object, or the value of an object which a defendant wrongfully obtained in the course of committing the crime. 'Reparation' is a somewhat broader term which has been defined as '(a) repairing or being repaired; restoration to good condition.' 6 We think it is consistent with the concept of 'repairing' to construe 'reparation' as encompassing only reimbursement for the victim's liquidated or easily measurable damages resulting from the charged offense. This construction would embrace medical expenses, wages actually (not prospectively) lost, and reimbursement for easily measurable property damage. 7
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 ORS 137.540(10) is, we believe, consistent with the rehabilitative purpose served by imposing restitution or reparation as a condition of probation. In theory, at least, that purpose is served by impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so. 9 As indicated above, we feel that the rehabilitative effect would be considerably weakened if instead of requiring compensation for easily perceived damages, the trial court were to force the payment of large and speculative amounts representing pain and suffering, loss of consortium and the like.
We recognize that some courts and commentators have advocated a much broader 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....
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