State v. Miller

606 P.2d 689 (1980)

44 Or.App. 625

STATE of Oregon, Respondent, v. Donald Edwin MILLER, Also Known As Donald Edward Miller, Appellant.

No. 22744; CA 13673.

Court of Appeals of Oregon.

Argued and Submitted December 12, 1979.

Decided February 19, 1980.

*690 Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before JOSEPH, P.J., and LEE and RICHARDSON, JJ.

JOSEPH, Presiding Judge.

Following a jury trial, defendant was convicted of theft in the first degree. At sentencing the judge ordered restitution to the victim in the amount of $4,964, but he failed to schedule the payments pursuant to ORS 161.675(1). On appeal, this court remanded the case for resentencing to correct that error. State v. Miller, 37 Or. App. 108, 586 P.2d 122 (1978). At resentencing the court did set up a schedule for repayment and also purportedly imposed additional restitution in the amount of $450 for the expenses incurred by the county in providing defendant's court-appointed counsel. On appeal from resentencing order on remand, defendant argues that the court erred in increasing the sanction imposed. The state responds that such error was waived by defendant's failure to make timely objection.

Citing State v. Thompson, 25 Or. App. 511, 514-15, 549 P.2d 1292 (1976), the state concedes that the resentencing court was without power to impose costs upon defendant in addition to the restitution originally ordered. Although the present case was simply reversed and remanded per curiam, the cases cited[1] should have indicated to the resentencing court that the only error was an omission: failure to establish a schedule of repayment. The resentencing court was without power to assess additional sanction or otherwise deal further with the underlying valid sentence. See State ex rel. Gladden v. Kelly, 213 Or. 197, 202, 324 P.2d 486 (1958); State v. Stackman, 43 Or. App. 235, 603 P.2d 363 (1979).

Ordinarily defects in the terms of restitution are waived by failure of the defendant to make timely objection pursuant to ORS 137.106(3). State v. Keys, 41 Or. App. 379, 381, 597 P.2d 1266 (1979); *691 State v. Daniels, 41 Or. App. 243, 248, 597 P.2d 1277 (1979). Here, the defendant has not waived his objection to the increasing of the sanction, an act which the resentencing court was without any authority to do. See State v. Braughton, 28 Or. App. 891, 893-94, n. 2, 561 P.2d 1040 (1977).

Affirmed as modified and remanded with instructions to vacate that portion of the resentencing order imposing costs.

[1] State v. Calderilla, 34 Or. App. 1007, 580 P.2d 578 (1978); State v. Ewing, 36 Or. App. 573, 585 P.2d 34 (1978).