DocketNumber: C100801CR; A145928
Citation Numbers: 250 Or. App. 342, 280 P.3d 399
Judges: Armstrong, Duncan, Haselton
Filed Date: 6/6/2012
Status: Precedential
Modified Date: 7/24/2022
Defendant appeals a judgment of conviction, following a bench trial, for unlawful use of a weapon, ORS 166.220; two counts of criminal mischief in the first degree, ORS 164.365; and menacing, ORS 163.190. He was sentenced to probation and ordered to pay, among other items, restitution in the amount of $3,209.85. On appeal, he raises three assignments of error related to his convictions, which we reject without discussion. We write only to address his fourth assignment of error, in which he challenges the award of restitution. On that assignment, we agree with defendant and reverse and remand for resentencing.
Defendant asserts that the trial court erred in ordering defendant to pay $273 in restitution to Care Oregon because the record lacks evidence to support that part of the restitution award.
At sentencing, the state requested restitution in the amount of $3,209.85, which the court awarded without objection from defendant. A restitution “exhibit” accompanying the judgment, which was apparently submitted to the court by the prosecutor, indicates that $273 of that amount is for “Care Oregon” and includes the notation “Attn: Subrogation,” as well as reference to a patient policy number. Although, as the state observes, that indicates that “Care Oregon is an insurance company that paid out on treatment to one of the victims,” the state also concedes that there is no evidence in the record to support that supposition.
Recently, in State v. Gruver, 247 Or App 8, 18, 268 P3d 760 (2011), we held that the trial court did not plainly err in imposing restitution where the prosecutor had adduced
We also exercise our discretion to correct the error. The amount of restitution is not insubstantial given defendant’s circumstances; moreover, the interests of justice militate against requiring a defendant to pay an obligation that is totally unsubstantiated by the record. Ailes, 312 Or at 382 n 6 (among the factors that the court considers in determining whether to exercise discretion to correct plain error are the gravity of the error and the interests of justice). Accordingly, we remand for resentencing and otherwise affirm. State v. Tippetts, 239 Or App 429, 244 P3d 891 (2010).
Remanded for resentencing; otherwise affirmed.
Defendant does not argue on appeal that the trial court erred in imposing the remaining amount of restitution.