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Restitution, Appeals and a Little-Known Statute

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by: Ryan • November 12, 2012 • no comments

Assume that you have a client who is going to appeal a conviction, a compensatory fine or restitution. The appeal -- if successful -- will likely take at least 30 months, and perhaps more if there is a petition for review. During that time, your client will be making payments to the court towards the restitution/compensatory fine, and those payments will be distributed to the victim. If you win on appeal, will your client ever get that money back?

Hard to say. I can't imagine the complainant would ever be required to re-pay the defendant. Would it make a difference if it's a compensatory fine rather than restitution? (That is, does that distinction impact whether the court would be required to re-fund the money?) Again, I don't know.

But there is something both the appellate and the trial lawyer can do to increase the odds that the client gets the money back. It's based on a statute that -- judging from my informal inquiries -- is not well known.

ORS138.135(2)provides:

(2) A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the circuit court, the Court of Appeals, or by the Supreme Court upon such terms as the court deems proper. The court may require the defendant, pending appeal, to deposit the whole or any part of the fine and costs with the clerk of the circuit court, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating the assets of the defendant.

First, I am assuming that "costs," as in "fine and costs," includes restitution, though I would not put money on it without looking into it further.

Note that the statute provides a variety of options. The defendant can request the stay either from the trial court or the Court of Appeals (or the Supreme Court, but I suspect that it would be the least likely option). The defendant may still have to pay part or all of the fine during the stay, but -- implicitly -- it would not be disbursed pending the resolution of the appeal. Also implicit, but nevertheless clear, the court could stay the fines and costs entirely, without ordering any deposit is made.

Whether to seek the stay from the trial court or the COA would be a tactical decision. If the trial court has expressed some doubt about, say, her ruling on the motion to suppress, and has expressed the opinion that the defendant may have a good shot at appeal, then making the request of the trial court would seem wise. If the appeal is targetted specifically at the fine itself, I would think that would increase the chances of success.

It's also something to mention to the prosecutor pre-trial. You can let them know that a plea might result in immediate payments to the victims, while a loss at trial could delay any recompense for 3 or more years.