No probation revocation for failure to pay restitution

Even though Oregon law specifically states that failure to pay restitution cannot be the basis for a revocation of probation, this is still something that judges occasionally do.

In its recent opinion in State v. Kacin, the Court of Appeals unambiguously stated that probation may *not* be revoked when the only issue is failure to make restitution payments. ORS 137.540 (9) is clear that “[a] court may not order revocation of probation as a result of the probationer’s failure to pay restitution unless the court determines from the totality of the circumstances that the purposes of the probation are not being served.”

A court may exercise discretion to find that the purposes of probation are not being served, but that discretion must be  “guided by a balancing of considerations of public safety and rehabilitation of persons convicted of crime.” State v. Stanford, 100 Or App 303, 306 (1990) (quoting Barker v. Ireland, 238 Or 1, 4 (1964)).