Summary
In Carpenter, the defendant had available a specific statutory remedy under ORS 137.106 (3), because the trial court's judgment deprived him of his right to be heard as to the rate of payment, i.e., the "amount" of restitution.
Summary of this case from State v. GainesOpinion
C88-03-31401; CA A50988
Argued and submitted March 27, 1990
Affirmed May 2, 1990 Reconsideration denied August 1, 1990 Petition for review denied September 18, 1990
Appeal from Multnomah County, Circuit Court.
Joseph F. Ceniceros, Judge pro tempore.
Peter Gartlan, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Acting Public Defender, Salem.
Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were David B. Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Graber, Presiding Judge, and Riggs and Edmonds, Judges.
EDMONDS, J.
Affirmed.
Defendant appeals his convictions for assault in the first degree and unauthorized use of a motor vehicle. ORS 163.185; ORS 164.135. He assigns error to the court's imposition of restitution as part of his sentence. ORS 161.675 (1). We affirm.
ORS 161.675 (1) provides:
"When a defendant, as part of a sentence or as a condition of probation or suspension of sentence, is required to pay a sum of money for any purpose, the court may order payment to be made forthwith or within a specified period of time in specified installments."
The sentence requires that defendant pay restitution "in an amount not to exceed $40,000, said restitution to be paid * * * at a payment rate and schedule to be determined by his parole officer * * *." Defendant argues that the trial court lacked authority to delegate the setting of a specific restitution payment schedule to the Board of Parole. See State v. Wilcher, 96 Or. App. 603, 773 P.2d 803 (1989). The state concedes that Wilcher would control but for the fact that defendant waived his right to a hearing, ORS 137.106 (3), at the time of sentencing. See State v. Deloge, 55 Or. App. 742, 745, 639 P.2d 1293 (1982); State v. Miller, 44 Or. App. 625, 606 P.2d 689 (1979); State v. Barnett, 42 Or. App. 69, 75, 600 P.2d 877 (1979); State v. Keys, 41 Or. App. 379, 381, 597 P.2d 1266 (1979); State v. Daniels, 41 Or. App. 243, 248, 597 P.2d 1277 (1979).
ORS 137.106 (3) provides:
"If the defendant objects to the imposition, amount or distribution of the restitution, the court shall at the time of sentencing allow the defendant to be heard on such issue."
ORS 137.106 was enacted in response to State v. Stalheim, 275 Or. 683, 552 P.2d 829 (1976). Subsection 3 was intended to afford a defendant the right to be heard, as contemplated by Stalheim. Or Laws 1977, ch 371, § 6; Minutes, House Committee on Judiciary, April 12, 1977, p 4.
Defendant argues that he is not barred from raising the issue on appeal, because the trial court's error is apparent on the face of the record and should, therefore, be corrected. See ORAP 5.45(2); State v. Kizer, 308 Or. 238, 241, 779 P.2d 604 (1989). He suggests that his failure to request a hearing and object makes no difference, because the trial court exceeded its statutory authority in imposing the sentence and that an objection is not a prerequisite to the challenging of a sentencing order that is void. See State v. Wills, 93 Or. App. 322, 761 P.2d 1365 (1988), rev den 307 Or. 611 (1989); State v. Braughton, 28 Or. App. 891, 561 P.2d 1040 (1977).
By failing to object, defendant waived his right to challenge the imposition of restitution. The cases relied on by the defendant do not discuss waiver of the right to object. When the legislature has specifically granted a right to be heard, failure to object prevents a challenge on appeal. State v. Keys, supra. Even if there was no objection, we may nonetheless consider error apparent on the face of the record. Consideration of that kind of error requires examination of the entire record to determine if error is manifest and whether the ends of justice would not otherwise be satisfied unless the error were considered. State v. Montez, 309 Or. 564, 600, 789 P.2d 1352 (1990); State v. Hickmann, 273 Or. 358, 360, 540 P.2d 1406 (1975).
We hold that, because defendant chose to waive his right to be heard and to object in the trial court, the ends of justice do not require that his assignment of error be considered on appeal.
Affirmed.