State v. Anderson ( 1992 )

ROSSMAN, J.

Defendant pled guilty to DUII. ORS 813.010. The trial court suspended imposition of sentence and placed him on probation. One of the conditions of probation requires him to pay $200 in restitution. Defendant objected on the ground that there was no evidence in the record to support that or any other figure. The trial court entered a sentencing order, including restitution of $200. We vacate the order of restitution and remand for resentencing.

Because defendant pled guilty, his appeal is governed by ORS 138.050 and 138.053, which limit our review to whether the disposition either exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. Our scope of review was changed by Or Laws 1989, ch 849, §§ 3, 4 and 5. Under former ORS 138.040, because probation was not a “sentence,” it was not subject to the limited review provisions of ORS 138.040 and ORS 138.050. State v. Carmickle, 307 Or 1, 7, 762 P2d 290 (1988); State v. Donovan, 307 Or 461, 770 P2d 581 (1989). In 1989, however, the legislature amended ORS 138.040 and ORS 138.050 so that the references to “sentence” were changed to “disposition.” It also enacted ORS 138.053, which specifies which “dispositions” are appealable and subject to limited review, including those that place a defendant on probation. Under the 1989 amendment, the limit of ORS 138.050 is that, after a plea of guilty or no contest, a judgment suspending imposition of sentence and placing a defendant on probation is now reviewable only as to whether it exceeds the maximum disposition allowable by law or is cruel and unusual.

However, the fundamental question is: What is a disposition that “exceeds the maximum allowable by law?” In State v. Bateman, 95 Or App 456, 463, 771 P2d 314, rev den 308 Or 197 (1989), we construed ORS 138.050 as it then read and held that a “sentence” that exceeds the maximum allowable by law is one in which “the period of incarceration imposed is more than the period specified in the relevant statute.” Under Bateman, a sentence exceeded the maximum allowable by law only if it exceeded the statutory term of imprisonment, but not if the sentence was unauthorized because it was imposed in violation of other statutory requirements. See also State v. Blaney, 101 Or App 273, 790 P2d 549 (1990).

However, because the present version of ORS 138.050 limits review of “dispositions” —including those which grant or revoke probation —and does not use the term “sentence,” we conclude that Bateman’s interpretation of what “exceeds the maximum allowable by law” means is not now consistent with the amended statute. Bateman’s reference to an excessive “period of incarceration” does not apply to dispositions imposing or revoking probation. We conclude that, given the statutory changes regarding the appeal and review of dispositions after guilty pleas, a disposition is legally defective and, therefore, exceeds the maximum allowable by law if it is not imposed consistently with the statutory requirements.¹

After the 1989 amendments to ORS 138.050, we still followed Bateman’s strict interpretation of the former statute regarding what exceeds the maximum allowable by law. In State v. Peters, 104 Or App 582, 801 P2d 904 (1990), the defendant challenged a sentence of imprisonment imposed after he pled guilty to nine crimes. He argued that the trial judge’s oral pronouncement did not include a minimum sentence and that, once the sentence was imposed and he began to serve it, the court illegally modified the sentence in the written judgment to include a minimum term. We held that, whether or not the sentence was unauthorized, it did not exceed the maximum term of imprisonment that could be imposed. Therefore, we held that we could not review the defendant’s assignment of error under the current ORS 138.050.

We continued to apply the Bateman reasoning in State v. King, 107 Or App 249, 810 P2d 413, rev den 312 Or 151 (1991) and State v. Ross, 108 Or App 560, 815 P2d 719 (1991). King and Ross followed Peters to hold that, whether or not the restitution orders involved were imposed illegally, they did not exceed the maximum amount that could have been ordered. Therefore, we held that we could not review them under the current ORS 138.050. Because we conclude that the reasoning in Bateman no longer applies under the amended statute, we now overrule Peters, King and Ross.

Defendant does not dispute that the trial court had authority under ORS 137.106 to impose restitution for DUII, but a trial court can order restitution only for monetary damages caused by a defendant’s criminal activity that is either proven or to which he admits. ORS 137.103(1); State v. Jones, 113 Or App 425, 833 P2d 320 (1992); State v. Stockton, 105 Or App 162, 164, 803 P2d 1227 (1991). Defendant argues that the trial court erred in fixing the amount because, although he pled guilty, he did not admit to — and the state did not prove — any specific amount of restitution. The record reveals that the state failed to “investigate and present to the court, prior to or at the time of sentencing, evidence of the nature and amount of such damages.” ORS 137.106(1). The burden was on the state to prove the amount of restitution, and it failed to do that.

ORS 137.106(3) provides:

“If the defendant objects to the imposition, amount or distribution of the restitution, the court shall at the time of sentencing allow the defendant to be heard on such issue.”

Because the state failed to present evidence to establish the appropriate amount of restitution and because defendant objected to the sufficiency of the evidence but was not afforded a hearing, the restitution order exceeded the maximum allowable by law.

Conviction affirmed; order of restitution vacated; remanded for resentencing.

1 We agree with the dissent’s conclusion that, in changing the limited review provisions of ORS 138.050 to apply to “dispositions,” instead of “sentences” only, the 1989 Legislature intended that judgments granting probation would be reviewable in the same manner that a sentence is reviewable. 113 Or App at 423. However, the dissent is incorrect in stating that, in amending ORS 138.050, “the legislature still did not touch the phrase ‘maximum allowable by law.’ ” 113 Or App at 421. The legislature did, in fact, change the statute to excise the term “sentence” from the phrase “exceeds the maximum sentence allowable by law.” (Emphasis supplied.) It did not keep the same language, and we, therefore, cannot give it the same meaning that we have given it in our past cases. The dissent also completely ignores ORS 138.053, which was created in 1989 to define all of the judgments that may constitute a “disposition” that may not “exceed the maximum allowable by law.”