Chapter 670 Oregon Laws 2003

AN ACT

SB 617

Relating to restitution; amending ORS 9.166, 137.106, 144.275, 153.090, 163.577 and 419C.450.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 137.106 is amended to read:

137.106. (1) When a person is convicted of a crime, or a violation as described in ORS 153.008, that has resulted in pecuniary damages, [unless the presentence investigation report contains such a presentation,] the district attorney shall investigate and present to the court, prior to [or at] the time of sentencing, evidence of the nature and amount of such damages. [In addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim.]

[(2) In determining whether to order restitution which is complete, partial or nominal, the court shall take into account:]

[(a)] If the court finds from the evidence presented that a victim suffered pecuniary damages, in addition to any other sanction it may impose, the court shall:

(a) Include in the judgment a requirement that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s pecuniary damages as determined by the court; or

(b) Include in the judgment a requirement that the defendant pay the victim restitution, and that the specific amount of restitution will be established by a supplemental judgment based upon a determination made by the court within 90 days of entry of the judgment. In the supplemental judgment, the court shall establish a specific amount of restitution that equals the full amount of the victim’s pecuniary damages as determined by the court. The court may extend the time within which the determination and supplemental judgment may be completed for good cause. The lien, priority of the lien and ability to enforce the specific amount of restitution established under this paragraph by a supplemental judgment relates back to the date of the original judgment that is supplemented.

(2) After the district attorney makes a presentation described in subsection (1) of this section, if the court is unable to find from the evidence presented that a victim suffered pecuniary damages, the court shall make a finding on the record to that effect.

(3) No finding made by the court or failure of the court to make a finding under this section limits or impairs the rights of a person injured to sue and recover damages in a civil action as provided in ORS 137.109.

(4) If a judgment or supplemental judgment described in subsection (1) of this section includes restitution, a court may delay the enforcement of the monetary sanctions, including restitution, only if the defendant alleges and establishes to the satisfaction of the court the defendant’s inability to pay the judgment in full at the time the judgment is entered. If the court finds that the defendant is unable to pay, the court may establish or allow an appropriate supervising authority to establish a payment schedule, taking into consideration the financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant. [;]

[(b) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; and]

[(c) The rehabilitative effect on the defendant of the payment of restitution and the method of payment.]

[(3)] (5) If the defendant objects to the imposition, amount or distribution of the restitution, the court shall [at the time of sentencing] allow the defendant to be heard on such issue at the time of sentencing or at the time the court determines the amount of restitution.

[(4) For crimes committed on or after December 5, 1996, the court shall order the prompt payment of the restitution whenever possible.]

SECTION 2. ORS 144.275 is amended to read:

144.275. Whenever the State Board of Parole and Post-Prison Supervision orders the release on parole of an inmate who has been ordered to pay compensatory fines pursuant to ORS 137.101 or to make restitution pursuant to ORS 137.106, but with respect to whom payment of all or a portion of the fine or restitution was suspended until the release of the inmate from imprisonment, the board may establish a schedule by which payment of the compensatory fine or restitution shall be resumed. In fixing the schedule and supervising the paroled inmate’s performance thereunder, the board shall consider the factors specified in ORS 137.106 [(2)] (4). The board shall provide to the sentencing court a copy of the schedule and any modifications thereof.

SECTION 3. ORS 153.090 is amended to read:

153.090. (1) Judgments entered under this chapter may include:

(a) Imposition of a sentence to pay a fine;

(b) Costs, assessments and restitution authorized by law;

(d) Remission of any balance of a base fine to the defendant or to any other person designated by the defendant; and

(e) Any other provision authorized by law.

(2) Notwithstanding ORS 137.106, if the court orders restitution in a default judgment entered under ORS 153.102, [the court need not make a determination of the defendant’s ability to pay for the purposes of any restitution provided for in the judgment. A defendant may seek a determination by the court as to the defendant’s ability to pay any restitution ordered under this subsection] a defendant may allege an inability to pay the full amount of monetary sanctions imposed, including restitution, and request a hearing to determine whether the defendant is unable to pay or to establish a payment schedule by filing a written request with the court within one year after the entry of the judgment. The court shall set a hearing on the issue of the defendant’s ability to pay upon receipt of the request and shall give notice to the district attorney. The district attorney shall give notice to the victim of the date, time and place of the hearing. The court may [reduce the amount of restitution] determine a payment schedule for monetary sanctions imposed, including restitution ordered under this subsection, if the defendant establishes at the hearing that the defendant is unable to pay the ordered restitution in full [or part].

(3) If a trial is held in a violation proceeding, or a default judgment is entered against the defendant under ORS 153.102, the court may impose any fine within the statutory limits for the violation. If a defendant pleads no contest under ORS 153.061 (2)(b), or pleads guilty under ORS 153.061 (2)(c), and the court accepts the plea and enters judgment against the defendant, the amount of the fine imposed against the defendant by the court may not exceed the amount of the base fine established for the violation under ORS 153.125 to 153.145.

(4) A judge may suspend operation of any part of a judgment entered under this chapter upon condition that the defendant pay the nonsuspended portion of a fine within a specified period of time. If the defendant fails to pay the nonsuspended portion of the fine within the specified period of time, the suspended portion of the judgment becomes operative without further proceedings by the court and the suspended portion of the fine becomes immediately due and payable.

(5) The court may not recommend a suspension of the defendant’s driving privileges unless a trial has been required. The failure of the defendant to appear at the trial does not prevent the court from recommending suspension of the defendant’s driving privileges.

(6) Entry of a default judgment under ORS 153.102 does not preclude the arrest and prosecution of the defendant for the crime of failure to appear in a violation proceeding under ORS 153.992.

SECTION 4. ORS 419C.450 is amended to read:

419C.450. (1)(a) It is the policy of the State of Oregon to encourage and promote the payment of restitution and other obligations by youth offenders as well as by adult offenders. In any case within the jurisdiction of the juvenile court pursuant to ORS 419C.005 in which the youth offender caused another person any physical, emotional or psychological injury or any loss of or damage to property, [the court shall consider restitution to the victim to be of high priority. There shall be a rebuttable presumption that the obligation to make such restitution is in the best interest of the youth offender as well as of the victim and society. For acts committed on or after December 5, 1996, the court shall order the prompt payment of restitution whenever possible] the district attorney shall investigate and present to the court, prior to or at the time of adjudication, evidence of the nature and amount of the injury, loss or damage. If the court finds from the evidence presented that a victim suffered injury, loss or damage, in addition to any other sanction it may impose, the court shall:

(A) Include in the judgment a requirement that the youth offender pay the victim restitution in a specific amount that equals the full amount of the victim’s injury, loss or damage as determined by the court; or

(B) Include in the judgment a requirement that the youth offender pay the victim restitution, and that the specific amount of restitution will be established by a supplemental judgment based upon a determination made by the court within 90 days of entry of the judgment. In the supplemental judgment, the court shall establish a specific amount of restitution that equals the full amount of the victim’s injury, loss or damage as determined by the court. The court may extend the time within which the determination and supplemental judgment may be completed for good cause. The lien, priority of the lien and ability to enforce a specific amount of restitution established under this subparagraph by a supplemental judgment relates back to the date of the original judgment that is supplemented.

(b) After the district attorney makes a presentation described in paragraph (a) of this subsection, if the court is unable to find from the evidence presented that a victim suffered injury, loss or damage, the court shall make a finding on the record to that effect.

(c) No finding made by the court or failure of the court to make a finding under this subsection limits or impairs the rights of a person injured to sue and recover damages in a civil action under subsection (2) of this section.

[(b)] (d) The court may order restitution, including but not limited to counseling and treatment expenses, for emotional or psychological injury under this section only:

(A) When the act that brought the youth offender within the jurisdiction of the court would constitute aggravated murder, murder or a sex crime if committed by an adult; and

(B) For an injury suffered by the victim or a member of the victim’s family who observed the act.

(2) Restitution for injury inflicted upon a person by the youth offender, for property taken, damaged or destroyed by the youth offender and for a reward offered by the victim or an organization authorized by the victim and paid for information leading to the apprehension of the youth offender, [may] shall be required as a condition of probation. Restitution does not limit or impair the right of a victim to sue in a civil action for damages suffered, nor shall the fact of consultation by the victim be admissible in such civil action to prove consent or agreement by the victim. However, the court shall credit any restitution paid by the youth offender to a victim against any judgment in favor of the victim in such civil action. Before setting the amount of such restitution, the court shall notify the person upon whom the injury was inflicted or the owner of the property taken, damaged or destroyed and give such person an opportunity to be heard on the issue of restitution.

(3) [If the youth offender has been placed in custody of the Oregon Youth Authority on probation or for placement at a youth correction facility, the court may order that the youth offender pay restitution, as provided in this section, and any assessment under ORS 137.290. In determining whether or not to order restitution or payment of an assessment under ORS 137.290 and, if so, the conditions of payment, the court shall take into consideration] If a judgment or supplemental judgment described in subsection (1) of this section includes restitution, a court may delay the enforcement of the monetary sanctions, including restitution, only if the youth offender alleges and establishes to the satisfaction of the court the youth offender’s inability to pay the judgment in full at the time the judgment is entered. If the court finds that the youth offender is unable to pay, the court may establish or allow an appropriate supervising authority to establish a payment schedule, taking into consideration:

(a) The availability to the youth offender of paid employment during such time as the youth offender may be committed to a youth correction facility;[.]

[(4) In determining whether or not to order restitution or an assessment under ORS 137.290, the court shall take into account:]

[(a)] (b) The financial resources of the youth offender and the burden that payment of restitution will impose, with due regard to the other obligations of the youth offender;

[(b)] (c) The present and future ability of the youth offender to pay restitution on an installment basis or on other conditions to be fixed by the court; and

[(c)] (d) The rehabilitative effect on the youth offender of the payment of restitution and the method of payment.

[(5)] (4) Notwithstanding ORS 419C.501 and 419C.504, when the court has ordered a youth offender to pay restitution, as provided in this section, the judgment [may] shall be docketed and[, if so,] shall have the same effect as a judgment in a civil action, as provided in ORS 18.320, 18.350, 18.360 and 18.400. The judgment is in favor of the state and may be enforced only by the state. Notwithstanding ORS 419A.255, a judgment for restitution docketed under this subsection is a public record. The requirements of ORS 137.071 (9) apply to a judgment under this subsection.

(5) A person required to pay restitution under subsection (1) of this section may file a motion supported by an affidavit for satisfaction of the judgment or supplemental judgment requiring payment of restitution in the circuit court of the county in which the original judgment was entered if:

(a) At least 50 percent of the monetary obligation is satisfied or at least 10 years have passed since the original judgment was entered;

(b) The person has substantially complied with all established payment plans;

(c) The person has not been found to be within the jurisdiction of the juvenile court under ORS 419C.005 or convicted of an offense since the date the original judgment of restitution was entered; and

(d) The person has satisfactorily completed any required period of probation or parole for the act for which the judgment of restitution was entered.

(6) When a person files a motion described in subsection (5) of this section, the district attorney for the county in which the motion was filed shall promptly notify the victim for whose benefit the judgment of restitution was entered that the person has filed the motion and that the victim may object in writing to the motion through the district attorney.

(7) If the victim does not object to the motion as provided in subsection (6) of this section, the court shall hold a hearing on the motion and may enter an order granting a full or partial satisfaction if the allegations in the affidavit supporting the motion are true and failure to grant the motion would result in an injustice. In determining whether an injustice would result, the court shall take into account:

(a) The financial resources of the defendant and the burden that continued payment of restitution will impose, with due regard to the other obligations of the defendant;

(b) The ability of the defendant to continue paying restitution on an installment basis or under other conditions to be fixed by the court; and

(c) The rehabilitative effect on the defendant of the continued payment of restitution and the method of payment.

(8) A person may file a motion under subsection (5) of this section no more than one time per year for each judgment of restitution entered against the person.

SECTION 5. ORS 163.577 is amended to read:

163.577. (1) A person commits the offense of failing to supervise a child if the person is the parent, lawful guardian or other person lawfully charged with the care or custody of a child under 15 years of age and the child:

(a) Commits an act that brings the child within the jurisdiction of the juvenile court under ORS 419C.005;

(b) Violates a curfew law of a county or any other political subdivision; or

(2) Nothing in this section applies to a child-caring agency as defined in ORS 418.205 or to foster parents.

(3) In a prosecution of a person for failing to supervise a child under subsection (1)(a) of this section, it is an affirmative defense that the person:

(a) Is the victim of the act that brings the child within the jurisdiction of the juvenile court; or

(b) Reported the act to the appropriate authorities.

(4) In a prosecution of a person for failing to supervise a child under subsection (1) of this section, it is an affirmative defense that the person took reasonable steps to control the conduct of the child at the time the person is alleged to have failed to supervise the child.

(5)(a) Except as provided in subsection (6) or (7) of this section, in a prosecution of a person for failing to supervise a child under subsection (1)(a) of this section, the court [may] shall order the person to pay restitution under ORS 137.103 to 137.109 to a victim for pecuniary damages arising from the act of the child that brings the child within the jurisdiction of the juvenile court.

(b) The amount of restitution ordered under this subsection may not exceed $2,500.

(6) If a person pleads guilty or is found guilty of failing to supervise a child under this section and if the person has not previously been convicted of failing to supervise a child, the court:

(a) Shall warn the person of the penalty for future convictions of failing to supervise a child and shall suspend imposition of sentence.

(b) May not order the person to pay restitution under this section.

(7)(a) If a person pleads guilty or is found guilty of failing to supervise a child under this section and if the person has only one prior conviction for failing to supervise a child, the court, with the consent of the person, may suspend imposition of sentence and order the person to complete a parent effectiveness program approved by the court. Upon the person’s completion of the parent effectiveness program to the satisfaction of the court, the court may discharge the person. If the person fails to complete the parent effectiveness program to the satisfaction of the court, the court may impose a sentence authorized by this section.

(b) There may be only one suspension of sentence under this subsection with respect to a person.

(8) The juvenile court has jurisdiction over a first offense of failing to supervise a child under this section.

(9) Failing to supervise a child is a Class A violation.

SECTION 6. ORS 9.166 is amended to read:

9.166. (1) If the board has reason to believe that a person is practicing law without a license, the board may maintain a suit for injunctive relief in the name of the Oregon State Bar against any person violating ORS 9.160. The court shall enjoin any person violating ORS 9.160 from practicing law without a license. Any person who has been so enjoined may be punished for contempt by the court issuing the injunction. An injunction may be issued without proof of actual damage sustained by any person. The court [may also] shall order restitution to any victim of any person violating ORS 9.160. The prevailing party may recover its costs and attorney fees in any suit for injunctive relief brought under this section in which the board is the plaintiff.

(2) A person licensed under ORS 696.022 acting in the scope of the person’s license to arrange a real estate transaction, including the sale, purchase, exchange, option or lease coupled with an option to purchase, lease for a term of one year or longer or rental of real property, is not engaged in the practice of law in violation of ORS 9.160.

Approved by the Governor August 18, 2003

Filed in the office of Secretary of State August 18, 2003

Effective date January 1, 2004

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