State v. Miller

Although ORS 137.540(2) allows a court to impose special provisions of probation when reasonably related to the crime of conviction or the needs of the petitioner for the protection of the public or reformation of the probationer, no provision exists for the forfeiture of property as a condition of probation.

Defendant appealed a condition placed on his probation by the trial court, which involved the forfeiture of gold that was seized from him. The state conceded this argument. Defendant also contended that the Court should (1) remand to the trial court with instructions to order the gold returned, or alternatively, (2) remand to the trial court for determination of ownership of the gold. The State argued that the Court’s disposition must be a remand for resentencing without reaching the issue of the ownership of the gold. Defendant had plead guilty to unlawful possession of methamphetamine, ORS 475.894. The trial court then sentenced Defendant to probation, and as a condition, ordered the forfeiture of eighteen gold discs that had previously been seized from Defendant. Nothing in the record tied the gold to Defendant’s commission of a crime. The court reasoned that ORS 137.540(2) does not authorize forfeiture as a condition of probation, and reasoned that no other provision existed for forfeiture of this property. The Court declined both of Defendant’s requested dispositions, because determination of ownership of the gold was beyond the scope of the proceeding. It also declined the State’s request to remand for resentencing, because Defendant’s probation had expired. The Court noted it was not holding that the expiration of Defendant’s probation rendered as moot, or otherwise resolved, the dispute over ownership of the gold. Reversed and remanded with instructions to delete special probation condition requiring forfeiture of gold discs; otherwise affirmed.