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State v. Gudino-Flores

Court of Appeals of Oregon

October 22, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
CYNTHIA GUDINO-FLORES, Defendant-Appellant

Submitted September 23, 2014

Marion County Circuit Court, 12C43498, Thomas M. Hart, Judge.

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Paul L. Smith, Attorney-in-Charge, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

[266 Or.App. 545] PER CURIAM

Defendant, who was convicted of first-degree burglary and second-degree assault, asserts on appeal that the trial court erred when it ordered her to pay $2,441.64 in restitution. Citing State v. McLaughlin, 243 Or.App. 214, 258 P.3d 1241, adh'd to on recons,

Page 986

247 Or.App. 334, 269 P.3d 104 (2011), rev dismissed, 352 Or. 107, 284 P.3d 485 (2012), defendant asserts that the trial court was without authority to order restitution in this case because the state failed to present any evidence of the amount of damages until after defendant was sentenced. In McLaughlin, we held that, for a court to order restitution, the state must present evidence of the nature and amount of damages prior to the time of sentencing. 243 Or.App. at 219. The state agrees that, " [u]nder this court's decision in McLaughlin, the trial court erred in imposing restitution" in this case. We agree and accept the state's concession.

Furthermore, we agree with the state that it is appropriate to remand this case for resentencing pursuant to ORS 138.222(5)(a).[1] As we explained in our opinion on reconsideration in McLaughlin, under circumstances like those in this case, where the court erred in imposing restitution but could have imposed a compensatory fine, " ORS 138.222(5)(a) requires that we remand for resentencing." 247 Or.App. at 337.

Remanded for resentencing; otherwise affirmed.


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