The defendant had been convicted of negligent homicide. On remand after an earlier sentencing reversal, the trial court imposed probation and ordered as a condition that the defendant pay $7,100 in reparation to the estate of the homicide victim. In doing so, the trial court relied on a post-1977 restitution statute. The defendant's criminal act, however, occurred when pre-1977 ORS 137.540(10) governed restitution as a probation condition.
Issue
Could the trial court, at resentencing, order the defendant to pay restitution to the estate of the homicide victim as a condition of probation? More specifically, did pre-1977 ORS 137.540(10) authorize restitution to the victim's estate as an "aggrieved party"?
Rule
A court errs by relying on a sentencing statute enacted after the defendant's criminal act. Under pre-1977 ORS 137.540(10), restitution as a condition of probation may be ordered only to the direct victim of the crime; persons or entities suffering loss because of the victim's death or injury, including the victim's estate, are not "aggrieved part[ies]."
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Portland, Lena Ortiz committed a criminally negligent homicide in 1976. After an appeal, the trial court resentenced her in 1979 and, citing a restitution statute enacted in 1977, ordered as a condition of probation that she pay $8,000 to the decedent's estate.
Was the restitution condition authorized?
Explanation. The controlling rule is that the sentencing court must apply the restitution statute in effect at the time of the criminal act, not a later-enacted statute. Under the pre-1977 version of ORS 137.540(10), restitution could be ordered only to the direct victim, and a homicide victim's estate is not the direct victim. Therefore the condition was unauthorized.