- Court: Oregon Court of Appeals
- Area(s) of Law: Appellate Procedure
- Date Filed: 05-30-2013
- Case #: A145183
- Judge(s)/Court Below: Wollheim, J. for the Court; Schuman, P. J.; and Nakamoto, J.
- Full Text Opinion
Defendant appealed the trial court's recommendation to pay restitution in an amount to be determined by the Board of Post Prison Supervision (BOPPS). Defendant was convicted of assault. At sentencing the trial court recommended restitution to the victim in an amount determined by BOPPS. Defendant did not object. Defendant appealed the sentence. The State argued that the appeal should not be considered because it was not preserved at trial. Defendant argued that the Court should review the error as plain. The Court follows a two-step process in deciding to review alleged plain error. First, an unpreserved error must be one of law, apparent or not reasonably in dispute, and appear on the face of the record. Second, the Court considers factors and exercises its discretion in determining whether the error should be reviewed. The Court held that the trial court had committed plain error, however, the Court declined to exercise its discretion to review the error. The Court found that Defendant had an opportunity make the court aware of the error at trial, the error would have been easy for the trial court to fix, and Defendant's request to strike the portion in error could result in a windfall for Defendant. Affirmed.