State v. Tippetts
Decision Date | 15 December 2010 |
Docket Number | 08CR0154, 07CR0087; A140031 (Control), A140032. |
Citation | 244 P.3d 891,239 Or.App. 429 |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Farrell Dewayne TIPPETTS, Defendant-Appellant. |
Court | Oregon Court of Appeals |
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. On the briefs were Peter Gartlan, Chief Defender, and Elizabeth Corbridge Ranweiler, Deputy Public Defender, Office of Public Defense Services.
Matthew J. Lysne, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Rene C. Holmes, Senior Assistant Attorney General.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.
In these two consolidated cases, defendant was convicted of multiple crimes involving separate victims. In each case, the court imposed restitution for counseling costs for the victim and the victim's mother. On appeal, defendant challenges his convictions in both cases and the imposition of restitution. We affirm defendant's convictions without discussion and write only to address the issue of restitution.
The trial court imposed restitution pursuant to ORS 137.106(1), which allows a court to impose restitution if it "finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose." Defendant did not object when the trial court imposed restitution, and he asks that we nonetheless review for plain error. Defendant contends that the court erred in imposing restitution under that statute because the record contains no evidence that "the victims or their mothers intended to seek counseling or that counseling had been recommended." The state concedes that the record does not contain any evidence that the victims or their mothers suffered economic damages, and that the trial court therefore plainly erred in imposing restitution. We agree with that concession and, given the significant amount of restitution imposed—$5,000 per victim and $2,500 for each mother—exercise our discretion to correct the error. State v. Harrington, 229 Or.App. 473, 477, 211 P.3d 972, rev den, 347 Or. 365, 222 P.3d 1091 (2009) ( ).
The only remaining question concerns the appropriate disposition for this type of error. The state, citing ORS 138.222(5), urges us to "remand the case for resentencing, at which time the state could present evidence of pecuniary damages." Defendant, meanwhile, argues that we should instead vacate the restitution award without remanding for resentencing, so that the state does not have a second opportunity to present evidence of economic damages. In support of that proposition, he directs us to two cases in which we have vacated judgments because the restitution award was improper,State v. Canady, 225 Or.App. 299, 201 P.3d 225 (2009), and State v. Biscotti, 219 Or.App. 296, 182 P.3d 269 (2008).
Defendant's proposed disposition is inconsistent with a long line of restitution cases—cases that trace back to the Supreme Court's decision in State v. Edson, 329 Or. 127, 136, 985 P.2d 1253 (1999). In Edson, the court held that errors involving the imposition of restitution are reviewed pursuant toORS 138.222,1 and, hence, an "appellate court's various disposition options" are limited to those set forth in ORS 138.222(5). 329 Or. at 136, 985 P.2d 1253. That statute provides:
This court, applying Edson, has consistently remanded for resentencing in circumstances in which the sentencing court erred by imposing restitution in the absence of any evidence of economic damages. See, e.g., State v. Powell, 234 Or.App. 589, 228 P.3d 719 (2010) ( ); Harrington, 229 Or.App. at 478, 211 P.3d 972 (same); State v. Neese, 229 Or.App. 182, 210 P.3d 933 (2009), rev. den., 347 Or. 718, 226 P.3d 709 (2010) ( );State v. Donahue, 165 Or.App. 143, 146, 995 P.2d 1202 (2000) ().
In Neese, for example, the fact that a new evidentiary hearing would occur on remand was one of the premises of our plain error analysis:
229 Or.App. at 186, 210 P.3d 933.2
We are not persuaded that that line of cases was incorrectly reasoned, nor do Canady and Biscotti demand another outcome here. In both of those cases, we concluded that the trial court had committed legal error in extending the time in which to impose restitution by way of a supplemental judgment. See ORS 137.106(1)(b) ( ). Given the nature of the error in those cases, there was nothing to...
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...resentencing because "there may be other permissible options that the trial court could adopt on resentencing"); State v. Tippetts , 239 Or. App. 429, 432, 244 P.3d 891 (2010) (we have "consistently remanded for resentencing in circumstances in which the sentencing court erred by imposing r......
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State v. Beckham
...defendant expressly or implicitly agreed to the state's proposed amount.”The state initially relies primarily on State v. Tippetts, 239 Or.App. 429, 433, 244 P.3d 891 (2010), as support for its position. In Tippetts, the state conceded that the trial court had plainly erred in imposing rest......
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State v. Almaraz-Martinez
...the trial court erred in ordering restitution, and we must reverse and remand the supplemental judgment. See State v. Tippetts , 239 Or.App. 429, 432, 244 P.3d 891 (2010) (explaining that this court "has consistently remanded for resentencing in circumstances in which the sentencing court e......
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State v. Park
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