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National Crime Victim Law Institute

State v. Algeo, — P.3d —, Nos. CC CR100607, SC S060830, 2013 WL 5497268 (Or. Oct. 3, 2013).

October 16, 2013

Defendant was convicted following a guilty plea to one count of driving under the influence of intoxicants and two counts of assault in the fourth degree.  During the post-sentencing restitution proceedings, the trial court found that the pedestrian-victims were jaywalking at the time defendant hit them and based upon this determined they were mostly at fault for the collision.  Applying civil comparative fault principles, the trial court ordered defendant to pay restitution in an amount equal to only ten percent of the victims’ economic damages.  The victim who suffered a fractured skull and other serious injuries petitioned the Oregon Supreme Court for direct review pursuant to ORS 147.535 and ORS 147.439, arguing that the trial court violated her constitutional and statutory rights to restitution, and specifically her right to receive the “full amount” of her economic damages.  The court addressed the victim’s constitutional argument, but declined to reach the statutory argument.  First, the court concluded that the state constitutional right to “receive prompt restitution from the convicted criminal who caused the victim’s loss or injury” does not include the right to receive restitution in the “full amount” of the victim’s economic damages as guaranteed by the state’s restitution statute.  In reaching its conclusion, the court declined to decide whether the victim’s constitutional right to restitution “is purely procedural or instead carries a substantive element and requires restitution in some amount or as measured by some standard” as that “is a question for another day.”  Second, the court concluded that the statutory authority upon which the victim relies for her petition for review only authorizes the court to review constitutional errors.  Because the court determined that the victim’s remaining argument concerns solely whether the trial court violated the victim’s statutory rights, the court held that it lacked jurisdiction to address the question given the procedural path by which this petition for review reached the court.  For these reasons, the court affirmed the trial court’s ruling.