State v. Vasby

788 P.2d 1024 (1990) 101 Or.App. 1

STATE of Oregon, Respondent,
v.
William James VASBY, Appellant.

10 88 02897 & 10 88 03662; CA A49417 (Control) & A49418.

Court of Appeals of Oregon.

Argued and Submitted April 26, 1989. Decided March 21, 1990.

Mary M. Reese, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Ann Kelley, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

In this consolidated appeal, defendant appeals from his convictions for burglary in the second degree, ORS 164.215, and theft in the first degree. ORS 164.045. He contends that the court erred in both sentencing him and placing him on probation. We vacate the sentences and remand.

Defendant was charged in two indictments with various offenses. He pled guilty to burglary in the second degree alleged in the first indictment. In the written "Order of Probation," the court said:

"IT IS HEREBY ORDERED AND ADJUDGED that the defendant is sentenced to pay restitution herein in the sum of $17,509.50, plus a Victim Assistance Assessment in the sum of $50.00."

Although denominated "Order of Probation," this part of the dispositional document imposed a sentence to pay restitution and the assessment. The order then provided:

"IT IS FURTHER ORDERED AND ADJUDGED that imposition of further sentence is suspended, and the defendant is placed on probation * * *." (Emphasis supplied.)

Execution of the sentence imposed in the first paragraph of the order was not suspended; only "imposition of further sentence" was suspended. (Emphasis supplied.) The "sentence" to pay restitution and the assessment would have to be executed if the sentence remains. As a condition of probation imposed by the second paragraph, defendant was to pay restitution. Consequently, the court imposed a sentence, execution of which was not suspended and, in addition, suspended imposition of any further sentence and placed defendant on probation. The dispositional order regarding the second indictment is similar: The court also required, as part of the "sentence" to pay restitution, that any unpaid balance due at the end of the probationary period would draw interest at nine percent until paid.

Defendant contends that the court exceeded its statutory authority by simultaneously imposing a sentence and placing him on probation.^[1] He does not dispute the court's authority to require restitution, ORS 137.106, or payment of the victim's assistance fee. ORS 137.290. He contends that the court could not impose these requirements as part of a sentence and, by suspending execution of the sentence, place him on probation.

The state does not directly dispute defendant's contention, but instead argues that neither monetary obligation is a sentence under former ORS 137.010(5):

"When a person is convicted of an offense and the court does not suspend imposition or execution of sentence or when a suspended sentence or probation is revoked, the court shall impose the following sentence:

"(a) A term of imprisonment; or

"(b) A fine; or

"(c) Both imprisonment and a fine; or

"(d) Discharge of the defendant."

The state concludes that, because restitution and monetary assessments are not listed, their imposition is not a sentence.

Former ORS 137.010(5) is not, however, the exclusive authority for a sentence. When ordered, restitution may be part of a sentence. ORS 137.106(1); State v. Bonner, 307 Or. 598, 601, 771 P.2d 272 (1989); State v. Zimmerman, 37 Or. App. 163, 166, 586 P.2d 377 (1978). The trial court clearly intended that the monetary obligations be a sentence.

We recognize that probation is not a sentence. State v. Carmickle, 307 Or. 1, 7, 762 P.2d 290 (1988); State v. Gaither, 97 Or. App. 576, 578, 776 P.2d 595 (1989). A court has authority to place a defendant on probation pursuant to ORS 137.010(3), which provides, in pertinent part:

"If the court suspends the imposition or execution of sentence, the court may also place the defendant on probation for a definite or indefinite period of not more than five years." (Emphasis supplied.)

We conclude from that provision that probation is an alternative to sentencing a convicted defendant. In other words, the authority to order probation is conditioned on the suspension of imposition or execution of any sentence. State v. Emmich, 34 Or. App. 945, 947-48, 580 P.2d 570 (1978). The court therefore lacked authority to order probation and, additionally, to impose a sentence.

Because the orders are designated, and appear to be, orders of probation, we vacate the inconsistent sentences. We also vacate the requirement that defendant pay interest, because that requirement is based on the sentence to pay restitution.

Sentences to pay restitution and victim's assistance fees vacated; order to pay interest on unpaid restitution vacated; remanded with instructions to enter judgment not inconsistent with this opinion.

NOTES

[1] The state initially argues that we should not review this contention or defendant's remaining assignment of error, which challenges the requirement that he pay restitution as a condition of probation, because he did not raise objections below. We agree that defendant's numerous challenges to the condition of probation should not be reviewed. However, his challenge to the court's sentencing authority is reviewable, despite the absence of an objection below. State v. Braughton, 28 Or. App. 891, 893, n 2, 561 P.2d 1040 (1977).