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State v. Partain

Court of Appeals of Oregon

July 10, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JEREMIAH SCOTT PARTAIN, Defendant-Appellant.

          Submitted March 6, 2019

          Josephine County Circuit Court 16CR82640, 17CR02471, 17CR07681, 17CR13280, 17CR13282; Lindi L. Baker, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.

         [298 Or.App. 450] Case Summary:

         Defendant appeals from judgments that revoked his probation and imposed sentencing terms in five cases. Defendant challenges the trial court's imposition of $138 in restitution in one of those cases, which was based on defendant's conviction for second-degree theft in a different case that was sentenced at the same time as the five probation violation cases.

         Held:

         Defendant was not required to preserve the claimed error because it appeared for the first time in the judgment. The trial court erred in imposing restitution in the probation violation judgment based on conduct that was not part of the crime of conviction for that judgment and that defendant did not admit to committing.

         [298 Or.App. 451] ORTEGA, P. J.

         Defendant appeals from violation of probation judgments that revoked his probation in five separate cases-case numbers 16CR82640, 17CR02471, 17CR07681, 17CR13280, and 17CR13282-and imposed sentencing terms. Defendant challenges only the trial court's imposition of $138 in restitution on one of the counts in case number 17CR07681 and does not challenge the judgments in the other cases. We conclude that the trial court erred in imposing restitution in that case, and, accordingly, we reverse the imposition of restitution in case number 17CR07681 and otherwise affirm.

         While on probation, defendant was arrested for possession of methamphetamine, of which he was later convicted. In the five cases listed above, after defendant's arrest, the state filed motions to show cause why defendant's probation should not be revoked. The trial court granted those motions and consolidated the cases for a hearing. Separately, defendant was also charged with second-degree theft from a Walmart, case number 17CR34703, which was set for trial on the same day as the probation violation hearing. In a bench trial, the trial court convicted defendant of second-degree theft, which defendant did not admit to, having testified that he paid for $138 of merchandise. The trial court then turned to the probation violation hearing. At the conclusion of that hearing, the trial court found that defendant had violated his probation.

         Before sentencing, the state made sentencing recommendations for the five probation violation cases, as well as for the second-degree theft case. With regard to the theft case, the state requested imposition of restitution payable to Walmart "to be attached to one of his cases where he'll be put on post-prison supervision." Defendant objected to the imposition of any restitution. The trial court then sentenced defendant in each of the probation violation cases. In each case, the court revoked probation and sentenced defendant to terms of incarceration and post-prison supervision. After completing sentencing in those five cases, the trial court turned to sentencing in the theft case. With regard to restitution in the theft case, the trial court stated that "I'm going to set restitution in the amount of $138. That's the amount [298 Or.App. 452] that defendant admitted to." The trial court did not state that it would impose that restitution in a case other than the theft case itself. However, in case number 17CR07681, one of the probation violation cases, the trial court imposed $138 in restitution payable to Walmart. The judgment in case number 17CR07681 provides that, "[restitution is ordered from case # 17CR34703."

         On appeal, defendant argues that the trial court erred in imposing restitution because the restitution was not based on the crime for which defendant was convicted in case number 17CR07681, nor was it based on conduct to which defendant had admitted. Defendant acknowledges that he did not preserve the precise challenge raised on appeal; however, he argues that he was not required to do so, because the trial court did not announce that it was imposing the restitution in case number 17CR07681, and, thus, the error appeared for ...


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