County Circuit Court 15CR40469 Gary Lee Williams, Judge.
appellant's petition for reconsideration fled July 17,
2019. Opinion fled May 1, 2019. 297 Or.App. 398, 442 P.3d
G. Lannet, Chief Defender, Criminal Appellate Section, and
Kristin A. Carveth, Deputy Public Defender, Offce of Public
Defense Services, for petition.
Ortega, Presiding Judge, and Powers, Judge, and Garrett,
Judge pro tempore.
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.
Or.App. 627] GARRETT, J. pro tempore
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.
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
"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).
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).
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.
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.
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] § 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