Submitted March 1, 2019
Multnomah County Circuit Court 17CR18522; David F. Rees,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Sara F. Werboff, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Greg Rios, Assistant Attorney General, fled the
brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Defendant was convicted of failure to perform the
duties of a driver when property is damaged, ORS 811.700, a
crime more commonly known as "hit and run."
Defendant stipulated to liability for restitution, but
contested the amount requested by the state. The court
subsequently entered a supplemental judgment requiring
defendant to pay $1, 300 in restitution. On appeal, defendant
contends that the court erred by imposing part of the
restitution cost because that fgure was based on the
court's subjective determination of the victim's
losses, not on objectively verifiable damages. The state
concedes the error. Held: The trial court erred when
it imposed a speculative amount of restitution.
judgment vacated and remanded; otherwise affirmed
Or.App. 229] HADLOCK, P. J.
driving a car, defendant hit an unattended vehicle and
departed the scene without leaving his contact information.
He later pleaded guilty to failure to perform the duties of a
driver when property is damaged, ORS 811.700, a crime more
commonly known as "hit and run," and a judgment of
conviction was entered on that charge. Defendant stipulated
to liability for restitution, but contested the amount
requested by the state. The court subsequently entered a
supplemental judgment requiring defendant to pay $1, 300 in
restitution. On appeal, defendant does not challenge the
court's order that he pay $500 in restitution
representing the victim's insurance deductible. However,
defendant contends that the court erred when it imposed an
additional $800 in restitution because that figure was based
on the court's subjective determination of the
victim's losses, not on objectively verifiable damages.
The state concedes the error. As explained below, we agree
with the parties that the trial court erred. Accordingly, we
vacate the supplemental judgment and remand.
the victim's insurance company "totaled" the
car that defendant had damaged, the state generally sought
restitution representing the victim's insurance
deductible as well as transportation costs that she incurred
before she purchased another car. At the start of the
restitution hearing, the parties suggested they would
stipulate to a certain amount in restitution that included
the victim's insurance deductible and amounts she had
spent on bus, train, and an hourly car-rental service.
However, the state also sought restitution for several
hundred dollars that the victim spent on other car-rental and
rideshare services, as well as about $500 in lost wages.
Defendant initially objected on the ground that those costs
were not adequately documented.
victim testified at the restitution hearing and described the
transportation costs that she incurred during the six to
seven months that passed between defendant damaging her
vehicle and when she purchased a new car. She also testified
that her work shifts were adjusted because she had to rely on
bus service for transportation, which caused [297 Or.App.
330] her to earn less money than she would have otherwise. On
cross-examination, defendant questioned the victim about why
it had taken her so long to buy another car and sought to
cast doubt on her calculation of lost wages. The victim also
acknowledged that she had not incurred certain expenses
associated with car ownership during the period when she
lacked a car.
closing arguments, the state reiterated its request for
restitution that included amounts for Lyft and ReachNow
transactions, as well as an amount in lost wages; added to
the amount to which the parties had said they would
stipulate, the state's total request came to about $2,
300. In response, defendant acknowledged that he was changing
his position; he argued, based on the victim's testimony,
that restitution should cover only two weeks of costs for
alternative transportation because the victim could have
purchased another car shortly after her own was
"totaled" and defendant should not be responsible
for costs she incurred over a much longer period. The parties
then discussed whether the costs for such a two-week period
had been adequately established.
trial court then stated that it was "going to take a
completely different approach" than the parties had
taken. The court first noted that the victim had
"incurred some additional costs for transportation"
and had "avoided some costs for transportation"; it
opined that the added costs and the savings "sort of
cancel each other out." However, the court stated, the
victim suffered "a significant convenience cost" in
not having her own vehicle, having to seek out other forms of
transportation, and having to spend more time in transit than
she would have if she had been driving her own car. The court
opined that "six or seven months" was not an
unreasonable amount of time for the victim to take to decide
"what she wanted to do." Accordingly, the court
stated, it would do "rough justice" by valuing the
victim's inconvenience at $800 for the period that she
lacked a car. Adding that to the $500 insurance deductible,
the court awarded a total of $1, 300 in restitution. When
defendant objected, the court acknowledged that it was basing
the restitution figure on "a subjective determination of
[the victim's] economic loss."
Or.App. 331] On appeal, defendant contends that the trial
court erred when it imposed $800 in restitution on a
subjective basis. As noted, the state concedes the error. The
parties disagree primarily on disposition. Defendant suggests
that we should simply reverse the portion of the supplemental
judgment that awards $800 in restitution; the state contends
that we should remand for resentencing because the ...