Submitted October 31, 2013.
Jackson County Circuit Court. 110849FE. Timothy Barnack, Judge.
Peter Gartlan, Chief Defender, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Justice J. Rillera, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[262 Or.App. 539] NAKAMOTO, J.
This case concerns a condition of probation involving the forfeiture of gold seized from defendant. On appeal, defendant asserts that the court erroneously ordered the probation condition, which the state concedes. Defendant also contends that he is entitled to the return of the gold, but the state asserts that we must remand for resentencing without reaching the issue whether defendant is the rightful owner of the gold. We agree with the parties that the trial court erred by ordering forfeiture as a special condition of probation. Accordingly, we reverse and remand with instructions to delete the forfeiture condition from the sentencing judgment, and otherwise affirm.
Defendant pleaded guilty to unlawful possession of methamphetamine, ORS 475.894. At the plea and sentencing hearing, the prosecutor argued that the court should order forfeiture of 18 gold discs and a digital scale previously seized from defendant in February 2010. Nothing in the record tied the gold to defendant's commission of the crime of unlawful methamphetamine possession.
The trial court sentenced defendant to probation and, over defendant's objection, ordered, as a special condition of probation, the forfeiture of the gold and the scale. The 18 gold discs weigh almost 900 grams in total, and defendant explained to the court that the gold was worth from $15,000 to $20,000.
Although defendant no longer seeks the scale, he has persisted in seeking the gold. In 2010, defendant filed a motion for return of the gold from the City of Medford and the state under ORS 133.633(1)(a) in a separately filed case. The circuit court denied relief and entered a judgment of dismissal. See ORS 133.663(3) (permitting a court to " leave the several claimants to appropriate civil process for the determination of the claims" ). The court's judgment in that case stated that " [i]t will be for some subsequent proceeding or proceedings to make a further determination of ownership, but on this record ownership is not established [by] either the petitioner Jeffrey David Miller or [by] Medford Pawn[,]" and we affirmed that judgment without issuing an [262 Or.App. 540] opinion. Miller v. City of Medford, 248 Or.App. 262, 274 P.3d 896 (2012).
In this case, defendant first asserts that the order of forfeiture was improper because he was unable to admit or deny that the property was subject to forfeiture and to review and to rebut evidence, if any, that the state might offer to show that the property constituted proceeds or instrumentalities of possession of methamphetamine. See ORS 131.558(10) (providing for criminal forfeiture of personal property that is used for prohibited conduct or so intended to be used). Moreover, he argues, the trial court had no basis to find that the property was an instrumentality or proceeds of possession of methamphetamine given that the prosecutor had not presented evidence to support that conclusion.
In response, the state correctly concedes that the trial court erred by ordering a forfeiture of the gold as a condition of ...