State v. Gray
State v. Gray
Opinion of the Court
The state petitions for reconsideration of our decision, State v. Gray, 153 Or App 296, 956 P2d 1066 (1998), in which we affirmed defendant’s conviction for theft in the second degree but vacated a judgment for restitution and remanded the case to the trial court for resentencing. We allow the petition, modify our opinion and adhere to it as modified.
Defendant was convicted of theft of a coat. In an amended judgment, the trial court imposed restitution to the victim in the amount of $60. In our opinion we said that “[t]he record does not show that defendant received notice of the restitution amount before the amended judgment [stating the amount of restitution] was entered.” Id. at 298. In a footnote we said that the state had attached to its brief a letter from the district attorney’s office to defendant’s counsel, dated two days before the entry of judgment, indicating that restitution of $60 was being requested for replacement of the stolen property, but that that letter was not a part of the trial court record. Id. at 298 n 1. In its petition, the state notes that, before the submission of briefs in this case, this court granted the state’s unopposed motion to supplement the record with the letter.
Nonetheless, we adhere to our holding that defendant did not have an adequate opportunity to object to the amount of restitution. The letter to defendant’s counsel,
Petition for reconsideration allowed; opinion modified and adhered to as modified.
ORS 19.365(4) provides:
“When it appears to the appellate court that the record on appeal is erroneous or that the record does not contain material that should have been part of the trial court file, and the erroneous or incomplete record substantially affects the merits of the appeal, on motion of a party or on its own motion the court may make such order to correct or supplement the record as may be just.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.