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No Oregon Restitution for Post-Crime Conduct

The En Banc Oregon Court of Appeals reversed a lower court's imposition of restitution stemming from a defendant's post-crime unlawful conduct.

Oregon law authorizes sentencing courts to impose restitution only for economic damages which result from a crime that a criminal defendant is convicted of. ORS 137.106(1)(a).

Scott Gerhardt was charged with strangulation of his wife. The court imposed a no­contact order, prohibiting him from communicating with his wife. While in jail, Gerhardt repeatedly violated the order, prompting his wife to hire a lawyer to enforce it and to obtain a restraining order under the Family Abuse Prevention Act.

Gerhardt ultimately pleaded guilty to the strangulation charge and the prosecutor sought restitution totaling $1,880 for attorney fees his wife incurred due to his repeated violations of the no-contact order. The sentencing court awarded the restitution, finding that Gerhardt's strangulation of his wife caused her to incur the attorney fees.

A Majority of the Court of Appeals reversed, finding that the restitution was not authorized by law because Gerhardt's wife incurred the attorney fees in response to his repeated violation of the no-contact order, not the strangulation.

"The attorney fees that the court awarded as restitution do not represent an expense that the victim necessarily incurred to redress harm that she suffered as a result of defendant's strangulation of her," the court found. "Rather, they represent an expense that the victim concluded that she needed to incur as a result of conduct in which defendant had engaged after he had committed the crime for which he was convicted. Hence, the attorney fees do not represent economic damages that the victim suffered as a result of defendant's criminal conduct."

One judge dissented, arguing that the majority's holding conflicted with State v. Ramos, 267 Or App 164, 340 P3d 703 (2004). The majority disagreed, finding that the Ramos expenses were necessarily incurred as a result of the defendant's criminal conduct. "In contrast, the expenses at issue in this case were incurred by the victim as a result of conduct by defendant that occurred after the criminal conduct for which he was convicted," the court held. "They are not comparable to the expenses for which the insurance company received restitution in Ramos."

Another judge dissented, arguing that the majority holding conflicted with previous decisions that allow restitution for events that occurred after the criminal conduct for which the defendant is responsible. "Those cases reflect a principle that restitution can be awarded for damages that are a foreseeable consequence of a defendant's criminal conduct," the Majority explained. "However, we do not believe that that principle extends to allow an award of restitution for expenses incurred by a victim as a result of unlawful acts committed by a defendant after the criminal acts on which the award is based." See: State v. Gerhardt, 273 Or App 592, (Or. Ct. App. 2015).

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Related legal cases

State v. Gerhardt

State v. Ramos