State v. Partain

Defendants are not required to preserve a challenge that is raised on appeal if the error appears for the first time in the judgment. State v. Lewis, 236 Or App 49, 52, 234 P3d 152 (2010).

Defendant appealed the trial court’s judgment revoking his probation in five separate cases. Defendant assigned error to the trial court’s imposition of $138 in restitution to one of the counts, which was based on Defendant's conviction for Theft in the Second Degree–a different case that was also sentenced at the same time as the five probation cases. On appeal, Defendant argued that the trial court erred by imposing restitution because the restitution was not based on the crime for which Defendant was convicted for and on probation.  In response, the State argued that Defendant failed to preserve his challenge. Defendants are not required to preserve a challenge that is raised on appeal if the error appears for the first time in the judgment. State v. Lewis, 236 Or App 49, 52, 234 P3d 152 (2010). The Court held that the trial court erred by imposing $138 in restitution in the probation violation judgment because it was based on conduct that was not part of the crime that Defendant was convicted of. Because the error appeared for the first time in the judgment, Defendant was not required to preserve the error. Restitution award reversed and remanded for resentencing; otherwise affirmed.