State v. Nosbisch

Under ORS 137.106(5), “[i]f the defendant objects to the imposition, amount or distribution of the restitution, the court shall allow the defendant to be heard on such issue. . . .”

Defendant entered into an agreement with the State to plead guilty on fourth-degree assault charges at trial. At sentencing, the court rejected Defendant’s request for a restitution hearing and ordered him to pay $1,111.04 at the State’s request. Defendant appealed the order and assigned error to the trial court for not allowing him to be heard on the restitution order. On appeal, Defendant argued the trial court was required to grant him an opportunity to be heard when he objected the State’s restitution request. In response, the State argued that the assignment of error was not reviewable because Defendant did not introduce a copy of plea offer into the record. Under ORS 137.106(5), “[i]f the defendant objects to the imposition, amount or distribution of the restitution, the court shall allow the defendant to be heard on such issue. . . .” The Court held that Defendant accepted an offer in his plea agreement that only identified what the State was going to offer for restitution, but Defendant did not “agree to forgo a hearing on the state’s recommendation.” The Court found that the trial court erred by imposing the restitution order on Defendant without providing him a restitution hearing.

Remanded for resentencing.