Opinion
B70-396; CA A44828
Argued and submitted January 22, 1988
Order of restitution vacated; remanded for reconsideration November 2, 1988
Appeal from the District Court, Lane County, Laurie K. Smith, Judge.
George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
Janet A. 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 Richardson, Presiding Judge, and Newman and Deits, Judges.
RICHARDSON, P.J.
Order of restitution vacated; remanded for reconsideration.
Defendant appeals his conviction, after a trial to the court on stipulated facts, for criminal mischief in the third degree. ORS 164.345. The court placed him on five years probation; one condition of probation is that he pay restitution of $405. Defendant's sole contention is that the trial court failed to consider his financial resources before imposing restitution.
The state contends that defendant's assignment of error is not reviewable under ORS 138.040, which it argues limits review of a sentence to whether it exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. In State v. Carmickle, 307 Or. 1, 762 P.2d 290 (1988), the court concluded that probation is not a "sentence" as the term sentence is used in ORS 138.040. It held "that an order of probation is appealable as a judgment on conviction and the appeal or review is not limited," 307 Or at 7, as the state argues. Consequently, whether the trial court properly imposed restitution is reviewable.
Defendant argues that, even though he raised the issue, the court did not consider his financial resources or his ability to pay restitution, as required by ORS 137.106. The state concedes that, if the issue is reviewable, the record does not show that the trial court followed the dictates of the statute. State v. Barnes, 58 Or. App. 516, 648 P.2d 1306 (1982). We agree.
Order of restitution vacated; remanded for reconsideration.