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Oregon Victim’s Right to Restitution Survives Prosecutor’s Statutory Violation

Oregon Victim’s Right to Restitution Survives Prosecutor’s Statutory Violation

by Mark Wilson

The Oregon Court of Appeals held that a prosecutor’s failure to comply with state restitution laws did not deprive a trial court of authority to impose restitution after sentencing.

Oregon law requires the prosecutor to “investigate and present to the court, prior to the time of sentencing, evidence of the nature and amount” of a victim’s damages resulting from a crime.

Cindie Wagoner was charged with identity theft. On October 15, 2009, the victim provided proof of her economic losses to Flores, a victim advocate assigned to her case by the Washington County District Attorney’s Office. However, Flores did not forward that information to the prosecutor.

Wagoner pleaded guilty and was sentenced in December 2009. The prosecutor noted that the time had passed for the victim to request restitution, and the trial court did not award any restitution. The January 5, 2010 judgment in Wagoner’s case indicated that the restitution amount was zero.

Flores was terminated the following month. When other employees cleaned out Flores’ desk they found the victim’s October 15, 2009 proof-of-loss documents.

In March 2010, the victim filed a motion asserting that she had a right to receive prompt restitution under Article I, section 42(1)(d) of the Oregon Constitution.

After a hearing, the trial court agreed that the victim was entitled to restitution; the court then issued a May 24, 2010 supplemental judgment requiring Wagoner to pay restitution of $800.

Wagoner appealed, arguing that because the prosecutor had failed to present evidence of the victim’s loss before sentencing as required by ORS 137.106, the trial court had no authority to subsequently impose restitution.

The Oregon Court of Appeals noted that it had “recently addressed a very similar question” in State v. Thompson, 257 Ore. App. 336, 306 P.3d 731 (Or. Ct. App. 2013), and found the ruling in Thompson controlled. The violation of ORS 137.106 “did not prevent the court from imposing restitution in order to provide the victim a remedy by due course of law, after it was discovered that her constitutional right to restitution was violated.”

Accordingly, the trial court’s order requiring Wagoner to pay restitution was affirmed. See: State v. Wagoner, 257 Ore. App. 607, 307 P.3d 528 (Or. Ct. App. 2013).


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Related legal case

State v. Wagoner