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State v. Taylor

Court of Appeals of Oregon

November 20, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSEF GRANT TAYLOR, Defendant-Appellant.

          Crook County Circuit Court 15CR40469 Gary Lee Williams, Judge.

         On appellant's petition for reconsideration fled July 17, 2019. Opinion fled May 1, 2019. 297 Or.App. 398, 442 P.3d 222.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Offce of Public Defense Services, for petition.

          Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.

         Case Summary: In its original opinion, State v. Taylor, 297 Or.App. 398, 442 P.3d 222 (2019), the Court of Appeals (1) rejected defendant's argument that ORS 137.106(1)(a) requires a trial court to determine the amount of restitution owed and enter a supplemental judgment of restitution within 90 days of the general judgment absent a finding of good cause for the delay, and (2) declined to address whether the district attorney's presentation of evidence regarding the nature and amount of damages was timely. Defendant petitions for reconsideration, contending that the decision conflicted with the court's previous decision in State v. Aguilar-Ramos, 284 Or.App. 749, 395 P.3d 65 (2017), which held, under the same statute, that the prosecutor's presentation of evidence was not timely. On the merits, defendant argues that the trial court's imposition of restitution more than 90 days after entry of the general judgment violated ORS 137.106(1) (a) because the delay was not justified by good cause. Held: On reconsideration, the court adhered to its first conclusion but addressed the merits of the second issue in light of the reasoning in Aguilar-Ramos. As to the second issue, the trial court did not err in finding good cause for the district attorney's presentation of evidence more than 90 days after the entry of judgment.

          [300 Or.App. 627] GARRETT, J. pro tempore

         Defendant petitions for reconsideration of our decision in State v. Taylor, 297 Or.App. 398, 442 P.3d 222 (2019). In that decision, we (1) rejected defendant's argument that ORS 137.106(1)(a) requires a trial court to determine the amount of restitution and enter a supplemental judgment of restitution within 90 days of the general judgment absent a finding of good cause for the delay, 297 Or.App. at 401, and (2) declined to address whether the district attorney's presentation of "evidence of the nature and amount of the damages," ORS 137.106(1)(a), was timely, 297 Or.App. at 400 n 2. Defendant contends that our decision conflicts with our previous decision in State v. Aguilar-Ramos, 284 Or.App. 749, 395 P.3d 65 (2017), in which we held, under the same provision, that a prosecutor's presentation of evidence was not timely. On reconsideration, we adhere to our first conclusion but agree with defendant that, in light of our reasoning in Aguilar-Ramos, we should address the merits of the second issue. Thus, we allow reconsideration, modify our previous opinion, and adhere to it as modified.

         We begin with ORS 137.106 and its history. Until 2013, ORS 137.106 included two distinct timing requirements for restitution: First, it required that, "[w]hen a person is convicted of a crime *** that has resulted in economic damages, the district attorney shall investigate and present to the court, prior to the time of sentencing, evidence of the nature and amount of the damages." ORS 137.106(1) (2011). Second, if the court found from the evidence presented that a victim had suffered economic damages, ORS 137.106(1) required the general judgment to include one of several restitution provisions. One of the options was as follows:

"A requirement that the defendant pay the victim restitution, and that the specific amount of restitution will be established by a supplemental judgment based upon a determination made by the court within 90 days of entry of the judgment. * * * The court may extend the time within which the determination and supplemental judgment may be completed for good cause."

ORS 137. 106(1)(b) (2011).

          [300 Or.App. 628] As is clear from that text, those two requirements applied to different entities. The first applied to the district attorney, who had to "investigate and present to the court * * * evidence of the nature and amount of the damages" early in the process-before sentencing. ORS 137.106(1) (2011). The second applied to the court itself, which had to determine the amount of restitution and enter the restitution judgment within 90 days of entry of the judgment of conviction. ORS 137.106(1)(b) (2011).

         Under that statute, we reversed restitution judgments when courts failed to comply with the second requirement by failing to determine the amount of restitution within 90 days of entry of the judgment in the absence of good cause for the delay. State v. Biscotti, 219 Or.App. 296, 304, 182 P.3d 269 (2008); see also, e.g., State v. Murrell, 242 Or.App. 178, 184, 255 P.3d 574 (2011). We noted that there was "nothing 'hortatory' about [the second requirement]. It plainly establishes a 90-day deadline for the issuance of a supplemental judgment ordering restitution." Biscotti, 219 Or.App. at 300-01.

         In State v. McLaughlin, 243 Or.App. 214, 219, 258 P.3d 1241, disposition modified on recons, 244 Or.App. 691, 260 P.3d 814, opinion withdrawn and original disposition adh'd to on recons, 247 Or.App. 334, 269 P.3d 104 (2011), rev dismissed, 354 Or. 491 (2013), we addressed a challenge regarding the first timing requirement. There, the defendant was convicted of theft, and the state presented evidence at trial of the nature of the stolen item and its replacement cost. However, the item had been recovered, and the state's evidence at trial did not include the cost of repairing and reinstalling it, which was the amount requested as restitution. Id. at 220. We held that the state had failed to present "evidence of the * * * amount of the damages" at the relevant time, that is, before sentencing. ORS 137.106(1) (2011); McLaughlin, 243 Or.App. at 221. Accordingly, we vacated the restitution judgment. Id.

         In response to our decision in McLaughlin, the legislature amended ORS 137.106 to extend the time by which the district attorney had to present evidence of the nature and amount of the damages. Or Laws 2013, ch 388, [300 Or.App. 629] ยง 1; Exhibit 2, House Committee on Judiciary, HB 3277, Apr 4, 2013 (statement of Department of Justice Legislative Director Aaron Knott). The amendment significantly modified the first timing requirement and entirely ...


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