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State v. Thompson

Court of Appeals of Oregon

June 26, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
KIRK DOUGLAS THOMPSON, Defendant-Appellant.

Argued and submitted on March 22, 2013.

Polk County Circuit Court 10P3245 A147752 William M. Horner, Judge.

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge. [*]

EGAN, J.

This case requires us to determine whether the trial court had the authority to issue an amended judgment requiring defendant to pay an additional amount of restitution to a crime victim several months after the original entry of judgment on defendant's criminal conviction. Defendant entered a guilty plea to one count of failing to perform the duties of a driver; pursuant to that plea, a judgment was entered requiring him to pay restitution to the victim, the City of Monmouth. Several months later, the victim filed a claim asserting that its constitutional rights had been violated when the trial court failed to order that defendant pay, as restitution, the full amount of the victim's economic damages. The trial court subsequently entered an amended judgment requiring defendant to pay an additional $1, 694.37 in restitution. Defendant's timely appeal followed the amended judgment. We affirm.

While driving a car in the City of Monmouth, defendant struck a stop sign and a street light pole belonging to the city. Defendant subsequently pleaded guilty to one count of failure to perform the duties of a driver when property is damaged, ORS 811.700. Prior to defendant's sentencing hearing, the Monmouth Public Works Department filed a victim-loss statement with the prosecutor, stating that it had cost the city $162.60 to fix the stop sign. The Monmouth Power and Light Department also filed a separate victim-loss statement with the prosecutor, indicating that it had cost $1, 694.37 to repair the damaged light pole. The prosecutor presented both those figures to the court, but apparently did not present the $1, 694.37 figure until just before defendant's sentencing hearing. At that hearing, the court indicated that it was not going to order restitution for the repair costs of the light pole because the prosecutor was late in presenting that figure to the court.[1] In a July 2010 judgment, the court sentenced defendant to 13 months' probation. It also ordered defendant to pay $162.60 in restitution to the City of Monmouth, reflecting the cost of the stop sign repair but not the light pole repair.

In September 2010, the City of Monmouth filed a claim asserting that its Oregon constitutional rights had been violated. Specifically, the claim alleged that the trial court's refusal to order defendant to pay restitution for the light-pole repair violated the city's constitutional right--as a crime victim--to receive prompt restitution. The trial court held a hearing on the city's motion in December 2010, some five months after the entry of judgment. The court concluded that it had erred by not ordering defendant to pay restitution for the light-pole repair and subsequently entered an amended judgment imposing $1, 856.97 in restitution.

Defendant appeals, asserting three arguments in support of his contention that the trial court erred by imposing the additional restitution. First, defendant asserts that, under Article I, section 42, of the Oregon Constitution, the city was required to assert its rights by petitioning the Supreme Court for a writ of mandamus and that the trial court therefore lacked authority to consider the city's victim's rights claim. He next asserts that the city's claim was not timely filed under ORS 147.515. Defendant concedes that he did not preserve that argument, but now argues that the time requirement of that statute restrains a trial court's jurisdiction to hear untimely victim's rights claims. Finally, he asserts that, because the amended judgment was issued more than 90 days after the original judgment, the trial court lacked authority under ORS 137.106 (2011) to impose the additional restitution.

"We review sentencing decisions, including restitution orders, for errors of law." State v. Noble, 231 Or.App. 185, 189, 217 P.3d 1130 (2009).

Defendant first contends that, because he had already been sentenced in a final judgment, Article I, section 42, divested the trial court of jurisdiction to consider the city's victim's rights claim and that the city could only seek relief by petitioning for a writ of mandamus in the Supreme Court. Article I, section 42, of the Oregon Constitution creates several rights for crime victims, including "[t]he right to receive prompt restitution from the convicted criminal who caused the victim's loss or injury." Or Const, Art I, § 42(1)(d). Article I, section 42, contains three relevant provisions concerning remedies for a violation of a victim's rights. The first states that every crime victim "shall have remedy by due course of law for violation of a right established in this section." Or Const, Art I, § 42(3)(a). Next, "[a] victim may assert a claim for a right established in this section in a pending case, by a mandamus proceeding if no case is pending or as otherwise provided by law." Or Const, Art I, § 42(3)(b). Finally,

"[t]he Legislative Assembly may provide by law for further effectuation of the provisions of this subsection, including authorization for expedited and interlocutory consideration of claims for relief and the establishment of reasonable ...

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