Summary
In State v. Crawford, 289 Or. 151, 610 P.2d 1232 (1980), the court held that a defendant is subject to no greater penalty than that which was in effect on the date of the commission of the crime, and a sentence to include restitution under those circumstances was erroneous because it was in excess of the court's authority.
Summary of this case from State v. DuranOpinion
TC 19-120, CA 14583, SC 26825
On review from Court of Appeals, petition for review allowed, reversed and remanded for resentencing May 20, 1980.
In Banc
On review from Court of Appeals.
Appeal from Circuit Court, Tillamook County. Glen Hieber, Judge. 44 Or. App. 131, 605 P.2d 759 (1980).
Gary D. Babcock, Public Defender, and David E. Groom, Deputy Public Defender, Salem, for petition.
No appearance contra.
MEMORANDUM OPINION.
Petition for review allowed. Reversed and remanded for resentencing.
MEMORANDUM OPINION.
Upon being convicted of burglary, the defendant was sentenced to three years' imprisonment and, pursuant to ORS 137.106, he was ordered to pay restitution to the county for the attorney fees and to the victim. The burglary was committed prior to the effective date of that statute, but the sentence was imposed subsequent to the effective date.
The Court of Appeals has held, and we agree, that a defendant is subject to no greater penalty than that which was in effect upon the date of the commission of the crime. It has applied the rule in cases involving restitution as a condition of probation under ORS 161.675 and 144.275, State v. Harvey, 35 Or. App. 719, 582 P.2d 476 (1978), and State v. Johnson, 39 Or. App. 711, 593 P.2d 1216 (1979). The rule is equally applicable to ORS 137.106. Nevertheless, the Court of Appeals affirmed this judgment without opinion. That decision was erroneous because the trial court imposed a sentence which was in excess of its authority. Therefore, the entire sentence must be vacated and a new sentence imposed.
Petition for review allowed. Reversed and remanded for resentencing.