Opinion
4-402F; CA A44339
Argued and submitted November 25, 1987
Finding of rule violation affirmed and remanded for reconsideration of restitution March 30, 1988
Judicial Review from Corrections Division.
Gary D. Babcock, Public Defender, Salem, argued the cause and submitted the brief for petitioner.
Scott McAlister, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and David L. Kramer, Assistant Attorney General, Salem.
Before Joseph, Chief Judge, and Warren and Rossman, Judges.
PER CURIAM
Finding of rule violation affirmed; remanded for reconsideration of restitution.
Petitioner seeks review of a final order of the Superintendent of the Oregon State Penitentiary which required him to serve one month in segregation and pay an indeterminate amount of restitution for a violation of OAR 291-105-015 (4), assault.
Petitioner contends that the evidence was not sufficient to support a finding that he assaulted another inmate and did not act in self defense. We disagree. The nature of the injuries to the other inmate, a prior challenge to a fight and the hearing officer's evaluation of the credibility of the witness are sufficient evidence to support the finding.
Petitioner's second contention is that there is no authority for ordering restitution of "one-half of the medical expenses incurred when the final cost is established." The record does not state what the amount of restitution will be. Respondent concedes error but urges that we not reach the issue because it was not timely voiced. It is clear error on the face of the record. Kelly v. OSP, 76 Or. App. 392, 708 P.2d 650 (1985); Lundy v. OSP, 27 Or. App. 665, 557 P.2d 58 (1976).
Finding of rule violation affirmed; remanded for reconsideration of restitution.