State v. Rosette

Restitution awarded after a defendant is convicted of a crime (ORS 137.106) should be calculated based on the recoverable economic damages available in a like civil action that could be brought against the defendant. State v. Islam, 359 Or 796, 800-801, 377 P3d 533 (2016).

Defendant appealed a conviction for first-degree theft. Defendant assigned error to the “loss of use” formula the trial court used to calculate restitution. Defendant argued both the formula and the dates used to calculate the damages were incorrect. Restitution awarded after a defendant is convicted of a crime (ORS 137.106) should be calculated based on the recoverable economic damages available in a like civil action that could be brought against the defendant. State v. Islam, 359 Or 796, 800-801, 377 P3d 533 (2016). The Court of Appeals found that “loss of use” is not the appropriate restitution formula because “loss of use” is based on a temporary deprivation of property. The Court determined conversion is the proper civil action the victim could bring against the defendant. The Court held the correct formula to calculate restitution is the fair market value of the stolen item on the date Defendant gained possessions (with interest), minus the fair market value (and interest) on the date it was recovered, plus incidental costs. Restitution award vacated; remanded for resentencing; otherwise affirmed.