State v. Benz

“An error is plain if (1) it is one ‘of law,’ (2) it is ‘apparent,’ meaning it is obvious and not reasonably in dispute, and (3) it appears ‘on the face of the record,’ meaning that the court ‘need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.’” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990).

Defendant appealed a supplemental judgement of restitution in the amount of $32,227.95. On appeal, Defendant argued the court erred because he was not convicted of, or admitted to some of the crimes to support the restitution award amount. In response, the State argued Defendant’s failure to specifically identify the claims challenged rendered his argument unpreserved and not appealable. “An error is plain if (1) it is one ‘of law,’ (2) it is ‘apparent,’ meaning it is obvious and not reasonably in dispute, and (3) it appears ‘on the face of the record,’ meaning that the court ‘need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.’” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). The Court of Appeals determined that requiring Defendant to pay restitution for crimes he was not charged with or admitted to is a plain error on the face of the record. The Court used its discretion to correct the error regardless of preservation. Remanded for resentencing; otherwise affirmed.