State v. Benton

790 P.2d 1191 (1990) 101 Or.App. 386

STATE of Oregon, Respondent,
v.
Larry David BENTON, Appellant.

B63-787; CA A61763.

Court of Appeals of Oregon.

Argued and Submitted March 2, 1990. Decided April 25, 1990.

David A. Hill, Eugene, argued the cause and filed the brief for appellant.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

GRABER, Presiding Judge.

Defendant appeals from a judgment finding him guilty of contempt and ordering him to serve three days in jail for failing to pay restitution in accordance with a previous court order. ORS 161.685. He assigns error to the trial court's denial of his motion to dismiss the order to show cause why he should not be held in contempt. He asserts that the order "fails to set forth ultimate facts sufficient to constitute an offense, ORCP 21A(8), [because] ORS 161.685 violates" his rights under the Due Process Clause of the Fourteenth Amendment and his privilege against self-incrimination under the state and federal constitutions. Defendant's specific due process claim is that the state should have the burden to prove every element of the contempt beyond a reasonable doubt. All of his arguments rest on the premise that the proceeding was for criminal contempt, because the judge imposed a determinate sentence. See State ex rel. Hathaway v. Hart, 300 Or. 231, 235, 708 P.2d 1137 (1985), quoting State v. Thompson, 294 Or. 528, 531, 659 P.2d 383 (1983).

The state argues that, because ORS 161.685 provides that defendant may be jailed only until he purges the contempt,^[1] it is a civil contempt statute. Accordingly, the procedure that the trial court followed did not violate defendant's privilege against self-incrimination or his right to due process in the ways that he argues. We agree that ORS 161.685, under which the court acted, is a civil contempt statute and that we need not reach defendant's constitutional arguments.

The state concedes that the determinate sentence violated the statute but urges us not to address the point, because defendant did not assign it as error. We hold, however, that the imposition of a determinate sentence was an error of law apparent on the face of the record. ORAP 5.45(2). The court stated in its judgment that it was acting "pursuant to the provisions of ORS 161.685;" it plainly had no authority under that statute to do what it did. See Langdon and Langdon, 100 Or. App. 661, 788 P.2d 473 (1990).

Sentence vacated; remanded for resentencing for civil contempt; otherwise affirmed.

NOTES

[1] ORS 161.685(2) provides, in pertinent part:

"[T]he court may find that the default constitutes contempt and may order the defendant committed until the fine or the restitution, or a specified part thereof, is paid." (Emphasis supplied.)