Opinion
C89-10-35945; CA A63979
Argued and submitted March 29, 1991 Affirmed May 15, 1991 Reconsideration denied August 28, 1991
Petition for review denied September 24, 1991
Appeal from Circuit Court, Multnomah County.
Ancer L. Haggerty, Judge.
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.
Janet Klapstein, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Affirmed.
Edmonds, J., dissenting.
Defendant pled guilty to assault in the second degree. ORS 163.175. He was given a sentence of 10 years with a minimum term of four years. In addition, the court ordered him to pay $10,723.95 as restitution. Defendant challenges the restitution order, contending that the court did not consider his financial resources or ability to pay, as required by ORS 137.106.
We affirm without deciding whether the court complied with ORS 137.106. Because defendant pled guilty, his appeal is governed by ORS 138.050, which limits our review to whether the sentence imposed either exceeds the maximum allowed by statute or is unconstitutionally cruel and unusual. ORS 138.050(1); State v. Peters, 104 Or. App. 582, 801 P.2d 904 (1990); State v. Blaney, 101 Or. App. 273, 276, 790 P.2d 549 (1990). There is evidence to support the amount of restitution.
Because the restitution order neither exceeds the maximum that could have been ordered or is cruel and unusual, we may not, on direct appeal, review the assignment of error.
Affirmed.
I dissent, because the imposition of an order to pay restitution without consideration of defendant's ability to pay, as required by ORS 137.106, is a sentence that exceeds the maximum allowed by law. See State v. Peters, 104 Or. App. 582, 801 P.2d 904 (1990) (Edmonds, J., specially concurring).