State v. Packer
State v. Packer
Opinion of the Court
Defendant appeals her conviction for aggravated theft in the first degree, a class B felony. ORS 164.057. The only issue is whether the court erred in imposing a compensatory fine after determining that defendant is unable to pay restitution. We hold that it did err and remand for resentencing.
After the jury returned a guilty verdict, the court ordered that defendant be placed on probation for five years. The state requested restitution, and defendant objected on the ground that she has no ability to pay. The court heard evidence that defendant has serious medical problems, is unable to work, has no assets and is supported entirely by public assistance. Thereafter, the court stated that it was “satisfied” that defendant “do[es] not have the financial resources to pay restitution.” However, it ordered defendant to pay a compensatory fine, “in the event that you ever do come into some money of some sort[.]” It said:
“[W]hat I am going to do is impose a compensatory fine of $30,000 under ORS 137.101, sub 1. There the statute speaks in terms of this section being liberally construed in favor of the victim, and does not take into account the person’s ability to pay, as the restitution statute [ORS 137.106] does.” (Emphasis supplied.)
Defendant contends that an assessment of one’s ability to pay is required for the imposition of either a compensatory fine or restitution.
ORS 137.101(1) provides, in part:
“Whenever the court imposes a fine as penalty for the commission of a crime resulting in injury for which the person injured by the act constituting the crime has a remedy by civil action, * * * the court may order that the defendant pay any portion of the fine separately to the clerk of the court as compensatory fines in the case. The clerk shall pay over to the injured victim or victims, as directed in the court’s order, moneys paid to the court as compensatory fines*491 under this subsection. This section shall be liberally construed in favor of victims.” (Emphasis supplied.)
Although the trial court correctly noted that the compensatory fine statute itself makes no mention of a criminal defendant’s ability to pay, other statutes do circumscribe, in numerous ways, a court’s authority to impose fines. See ORS ch 161. Most notably, ORS 161.645 provides:
“In determining whether to impose a fine and its amount, the court shall consider:
“(1) The financial resources of the defendant and the burden that payment of a fine will impose, with due regard to the other obligations of the defendant; and
“(2) The ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the court.” (Emphasis supplied.)
In sum, a court is required first to consider a defendant’s ability to pay a fine. ORS 161.645; State v. Qualey, 138 Or App 74, 77, 906 P2d 835 (1995). After that consideration, it may impose a fine as a penalty pursuant to ORS 161.625,
Conviction affirmed; remanded for resentencing.
This being an error apparent on the face of the record, we exercise our discretion to review the unpreserved error.
ORS 161.625(l)(a) provides:
“A sentence to pay a fine for a felony shall be a sentence to pay an amount, fixed by the court, not exceeding: * * * $200,000 for a Class B felony.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.