Chapter 137

137.010

NOTES OF DECISIONS

Unless it is clear from the judgment that the sentences are to be served consecutively, they are to be construed as concurrent. State v. Blake, 7 Or App 307, 490 P2d 1026 (1971)

The oral pronouncement from the bench is the judgment. State v. Blake, 7 Or App 307, 490 P2d 1026 (1971)

A trial court has inherent power to impose a combined concurrent:B1.consecutive sentence for a single offense. Trahan v. Cupp, 8 Or App 466, 493 P2d 1391 (1972), Sup Ct review denied, cert. denied, 409 US 884

A trial court has inherent power to impose concurrent or consecutive sentences in appropriate situations. Trahan v. Cupp, 8 Or App 466, 493 P2d 1391 (1972), Sup Ct review denied, cert. denied, 409 US 884

Deterrent effect on others is a relevant consideration in imposing sentence. State v. Patzer, 8 Or App 491, 493 P2d 1389 (1972), Sup Ct review denied

Trial court lacked authority to stay period of probation pending outcome of appeal. State ex rel Dillavou v. Foster, 273 Or 319, 541 P2d 811 (1975); State v. Popp, 118 Or App 508, 848 P2d 134 (1993)

The court’s supervisory jurisdiction over a defendant is limited to a maximum of five years from the date of disposition. State v. Maddox, 29 Or App 787, 564 P2d 1372 (1977), Sup Ct review denied

Where show cause order initiating revocation of defendant’s probation was issued prior to expiration of probationary period, court retained jurisdiction to enter revocation order after the period had expired. State v. Lopez, 30 Or App 687, 569 P2d 1059 (1977)

Notwithstanding that maximum period of imprisonment which may be imposed for commission of Class A misdemeanor is one year, trial court was empowered to suspend sentence of nine months’ imprisonment and place defendant on probation for period of five years. State v. Williams, 31 Or App 381, 570 P2d 424 (1977)

Revocation of suspended sentence and reimposition of sentence after October 4, 1977, requires preparation of presentence report pursuant to [former] ORS 144.790. State v. Gale, 35 Or App 3, 580 P2d 1036 (1978)

Imposition of five-year probation term, commencing immediately but necessarily extending beyond three-year period of confinement to which defendant was contemporaneously sentenced on another charge was within statutory authority of court. State v. Jones, 36 Or App 271, 584 P2d 349 (1978)

Where defendant was convicted of rape and kidnapping, but judge imposed sentence only for rape conviction, defendant could not complain about error. State v. Dorsey, 44 Or App 721, 607 P2d 204 (1980)

Where statute enacted after defendant committed crime provided for additional year of probation in lieu of probation revocation and defendant was placed on probation for additional year pursuant to that statute, defendant was subjected to greater sentence than that to which he was susceptible when he committed crime, in violation of ex post facto provision of Oregon Constitution. State v. Metzler, 72 Or App 555, 696 P2d 576 (1985)

Sentencing order that provides for 10 years’ imprisonment along with separate five-year probation, conditioned on defendant serving one year in county jail consecutive to prison term, does not violate this section because order means that jail term will be served consecutively to prison term only if defendant is released from prison before period of probation expires. State v. Nunn, 84 Or App 642, 734 P2d 1375 (1987)

Where defendant pleaded guilty, argument that trial court lacked authority to revoke its order suspending imposition of sentence or to impose any sentence failed to raise issue within scope of appellate review. State v. Blaney, 101 Or App 273, 790 P2d 549 (1990)

Trial court may not impose conditions of parole as part of sentence but court may make express recommendation to parole board for special conditions of parole. State v. Edwards, 103 Or App 410, 797 P2d 402 (1990); State v. Potter, 108 Or App 480, 816 P2d 661 (1991)

Trial court was without authority to impose fine as punishment for defendant’s murder conviction. State v. Batty, 109 Or App 62, 819 P2d 732 (1991), Sup Ct review denied

Where imposition of any sentence for misdemeanor is discretionary and felony sentencing guidelines impose mandatory sentence, existence of felony sentencing guidelines does not render disproportionate misdemeanant’s sentence of incarceration. State v. Rice, 114 Or App 101, 836 P2d 731 (1992), Sup Ct review denied

Because sentencing guidelines do not apply to misdemeanor convictions, trial court did not err by requiring defendant to serve consecutive misdemeanor sentences after serving prison term for felony conviction. State v. Miller, 114 Or App 235, 835 P2d 131 (1992)

Adjudications sufficient to commit juvenile to juvenile facility may be used as basis for enhancing sentence for crime committed as adult. State v. Stewart, 123 Or App 147, 859 P2d 545 (1993), modified 126 Or App 456, 868 P2d 794 (1994), aff’d 321 Or 1, 892 P2d 1013 (1995)

Where case is remanded for resentencing, five-year probation limit applicable to suspended sentences is measured from date original sentence was imposed. State v. Lewis, 137 Or App 108, 903 P2d 391 (1995), Sup Ct review denied

Where court imposes concurrent terms of probation for some counts and incarceration for other counts, trial court loses authority to modify sentences once any sentence has been put into effect. State v. Hamlin, 151 Or App 481, 950 P2d 336 (1997), Sup Ct review denied; State v. Lebeck, 171 Or App 581, 17 P3d 504 (2000)

Execution of judgment commences as soon as defendant is physically delivered to Department of Corrections, regardless of whether judgment is served concurrently or consecutively with another judgment ordering defendant to department’s custody. State v. DeCamp, 158 Or App 238, 973 P2d 922 (1999)

Fine may be sentence, condition of probation, or both. State v. Zimmerman, 166 Or App 635, 999 P2d 547 (2000)

Trial court retains authority to modify legally invalid sentence notwithstanding execution of sentence. State v. Horsley, 168 Or App 559, 7 P3d 646 (2000)

COMPLETED CITATIONS: State v. Morasch, 5 Or App 211, 483 P2d 474 (1971), Sup Ct review denied; State v. Ragghianti, 5 Or App 498, 484 P2d 1125 (1971), Sup Ct review denied; State v. Smith, 6 Or App 27, 487 P2d 90 (1971), Sup Ct review denied; State v. Penland, 6 Or App 255, 486 P2d 1314 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 24 WLR 1158 (1988)

137.013

NOTES OF DECISIONS

Specific requirements of aggravated murder statute supersede this section and prohibit introduction of victim impact evidence in those cases. State v. Metz, 131 Or App 706, 887 P2d 795 (1994), Sup Ct review denied; State v. Guzek, 322 Or 245, 906 P2d 272 (1995). But see State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

137.020

NOTES OF DECISIONS

Where jury convicted defendant of aggravated felony murder (burglary) and aggravated felony murder (robbery), jury did not necessarily find defendant guilty of underlying felonies, and there was no finding of guilt and no verdict on which to base judgment of conviction and sentence for either underlying felony. State v. Madison, 93 Or App 182, 760 P2d 1384 (1988)

LAW REVIEW CITATIONS: 51 OLR 652 (1972)

137.030

NOTES OF DECISIONS

A substantive change in the sentence must be accomplished in defendant’s presence or it may be invalidated. State v. Blake, 7 Or App 307, 490 P2d 1026 (1971)

A modification of a judgment providing that sentences would be served consecutively, rather than concurrently is a substantive change in the sentence. State v. Blake, 7 Or App 307, 490 P2d 1026 (1971)

Where court imposes written sentence that is more severe than oral proposed sentence, statement of proposed sentence in presence of defendant does not satisfy requirement that defendant be present when sentenced. State v. Jacobs, 200 Or App 665, 117 P3d 290 (2005)

Modification that acts only to make otherwise legally incorrect sentence comply with mandatory sentencing law is administrative change that does not involve right of participation by defendant. State v. Rickard, 225 Or App 488, 201 P3d 927 (2009)

137.076

NOTES OF DECISIONS

Drawing of blood samples from convicted or adjudicated prisoners for future DNA identification purposes does not constitute unreasonable search or seizure. State ex rel Juv. Dept. v. Orozco, 129 Or App 148, 878 P2d 432 (1994), Sup Ct review denied; Rise v. State of Oregon, 59 F3d 1556 (9th Cir. 1995)

Application of blood sampling program to persons convicted prior to program creation does not constitute additional punishment. Rise v. State of Oregon, 59 F3d 1556 (9th Cir. 1995)

Required blood testing of all persons convicted of listed felonies does not violate due process. Rise v. State of Oregon, 59 F3d 1556 (9th Cir. 1995)

Requiring convicted felon to supply blood or buccal sample does not violate federal or state constitutional privacy rights. State v. Sanders, 343 Or 35, 163 P3d 607 (2007)

137.079

NOTES OF DECISIONS

A defendant has a constitutional right to a copy of that part of a presentence report which deals with public information and relates to his prior criminal record. Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972)

Appointment of psychologist to assist defendant in preparing for the sentencing hearing eliminated any need for disclosure of the psychological test data underlying conclusions contained in the presentence report. State v. Eder, 29 Or App 375, 563 P2d 765 (1977)

Where trial court, in sentencing, considered confidential information not contained in presentence report and stated that reasons for nondisclosure were that information was “basically covered” by presentence report and that it was confidential, there was no basis for appellate review and resentencing was required. State v. McCaffrey, 45 Or App 87, 607 P2d 777 (1980)

It was error for trial judge to deny defendant’s request for presentence report and only to make copy of report available in his chambers for defense counsel to look at. State v. Green, 49 Or App 949, 621 P2d 67 (1980)

Absent waiver, there is no acceptable alternative to strict compliance with this section, so despite fact defendant was illiterate and of limited intelligence, reading pre-sentence report to defendant rather than supplying him with a copy was error. State v. Carsner, 289 Or 645, 616 P2d 491 (1980)

Where statement of reason for court not disclosing part of presentence report or other written information was not provided, remand for resentencing was required. State v. Fears, 69 Or App 606, 688 P2d 88 (1984), Sup Ct review denied

It was error for trial court to classify out-of-state conviction as felony conviction for purposes of Sentencing Guidelines when elements of offense did not constitute felony or Class A misdemeanor under current Oregon law, even though offense was classified as felony in other state. State v. Tapp, 110 Or App 1, 821 P2d 1098 (1991)

Review of finding by sentencing court that defendant’s conviction was counseled was decision on issue “relating to a defendant’s criminal history” and not subject to review under this section. State v. Holliday, 110 Or App 426, 824 P2d 1148 (1992), Sup Ct review denied

Sentencing guidelines do not eliminate requirement that if defendant disputes any part of criminal history in presentence investigation report defendant must notify district attorney and court in writing. State v. Delgado, 111 Or App 162, 826 P2d 1014 (1992)

Nonreviewable nature of determination whether criminal history exists does not preclude review under ORS 138.222 of whether consideration of criminal history during sentencing was proper. State v. Leslie, 134 Or App 366, 895 P2d 342 (1995), Sup Ct review denied; State v. Crain, 192 Or App 328, 84 P3d 1092 (2004), Sup Ct review denied

Where defendant challenges inclusion of prior juvenile adjudication in criminal history, defendant may demonstrate adjudication was uncounseled either by affirmative showing defendant was not represented or by showing record is silent on matter. State v. Riggins, 180 Or App 525, 44 P3d 615 (2002)

Where defendant challenges criminal history and demonstrates prior juvenile adjudication was uncounseled, state must establish juvenile and juvenile’s parents were aware of right to counsel and intentionally waived right. State v. Riggins, 180 Or App 525, 44 P3d 615 (2002)

“Criminal history” does not include calculation of criminal history score in presentence report. State v. Torres, 184 Or App 515, 59 P3d 47 (2002)

Where defendant challenges criminal history based on lack of counsel during prior proceeding, unavailability of record for prior proceeding does not allow inference that defendant was unrepresented. State v. Crain, 192 Or App 328, 84 P3d 1092 (2004), Sup Ct review denied

ATTY. GEN. OPINIONS: Authority of Board of Parole to adopt procedures for in camera determination of which materials are subject to disclosure to prisoners with respect to parole determinations, (1978) Vol 38, p 1881

137.080

NOTES OF DECISIONS

Unsworn statements may be received by the trial court in considering sentence. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied

Hearsay is admissible in the sentencing procedure at least in so far as it may be included in a presentence report. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied

Sentencing court may consider aggravating factors and impose departure without suggestion of either party. State v. Swisher, 116 Or App 129, 840 P2d 1339 (1992), Sup Ct review denied

In imposing departure sentence, court could consider that defendant committed offense while on release from earlier offense, defendant’s failure to appear for trial, and defendant’s commission of similar unrelated offenses sentenced at same court session, but could not consider criminal history or seriousness of crime. State v. Nelson, 119 Or App 84, 849 P2d 1147 (1993)

Where crime seriousness subcategory factor refers to offender rather than offense, factor applies only if defendant personally engaged in described conduct. State v. Lark, 316 Or 317, 851 P2d 1114 (1993); State v. Flanigan, 316 Or 329, 851 P2d 1120 (1993)

Where crime seriousness subcategory factor refers to offense rather than to offender, factor may be applied vicariously to accomplice who did not personally engage in factor conduct. State v. Lark, 316 Or 317, 851 P2d 1114 (1993); State v. Flanigan, 316 Or 329, 851 P2d 1120 (1993)

COMPLETED CITATIONS: State v. Smith, 6 Or App 27, 487 P2d 90 (1971), Sup Ct review denied

137.090

NOTES OF DECISIONS

Unsworn statements may be received by the trial court in considering sentence. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied

Hearsay is admissible in the sentencing procedure at least in so far as it may be included in a presentence report. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied

The defendant does not have the right to take testimony controverting information contained in the presentence report. Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972)

Prior juvenile violations and criminal convictions obtained in proceedings where defendant was not represented by counsel, or was not advised of his right to counsel or did not intelligently waive his right to counsel are subject to collateral attack when listed in presentence report. State v. Flores, 13 Or App 556, 511 P2d 414 (1973)

A trial court’s refusal to consider a presentence report before the imposition of sentence does not constitute a denial of the defendant’s right to effective counsel. State v. Watson, 26 Or App 59, 551 P2d 1314 (1976)

Under this section, state was required to present by witnesses in open court derogatory information contained in its sentencing summary. State v. Collins, 43 Or App 265, 602 P2d 1081 (1980)

This section makes hearsay rules of evidence applicable to testimony of witnesses in sentencing hearing about circumstances that are put forward to justify aggravation of punishment where testimony implicates defendant in criminal activity for which he has never been charged or tried. State v. Deck, 84 Or App 725, 735 P2d 637 (1987)

Inclusion of persistent involvement history in determining criminal history score does not preclude court from using same history as basis for imposing upward departure sentence. State v. Kennedy, 113 Or App 134, 831 P2d 712 (1992); State v. Westcott, 139 Or App 374, 912 P2d 400 (1996), Sup Ct review denied

Court may consider incidents occurring subsequent to tried offense as evidence of persistent involvement in criminal activity. State v. Ceballos, 162 Or App 477, 986 P2d 680 (1999), Sup Ct review denied

Where prior juvenile adjudication is offered for sentence enhancement purposes, existence of adjudication must either be proved to trier of fact or be admitted by defendant for sentencing purposes following informed and knowing waiver. State v. Harris, 339 Or 157, 118 P3d 236 (2005)

Sentence enhancing factors are material elements of offense that state is required to prove beyond reasonable doubt. State v. Upton, 339 Or 673, 125 P3d 713 (2005)

Requirement that miscellaneous evidence relevant to aggravation or mitigation be “trustworthy and reliable” does not make Oregon Evidence Code applicable to adjudicatory phase of revocation proceeding. State v. Hammond, 218 Or App 574, 180 P3d 137 (2008)

137.101

NOTES OF DECISIONS

Amount of compensatory fine may not exceed maximum fine that could otherwise be imposed for underlying offense. State v. Gray, 113 Or App 552, 833 P2d 341 (1992)

Pecuniary damage must be shown before compensatory fine may be imposed. State v. Smith, 116 Or App 558, 842 P2d 805 (1992), on reconsideration 120 Or App 438, 852 P2d 934 (1993)

Pecuniary loss suffered by injured person compensable only if special damages could be recovered in civil action. State v. Barkley, 315 Or 420, 846 P2d 390 (1993); State v. Smith, 120 Or App 438, 852 P2d 934 (1993)

Consideration of defendant’s ability to pay is prerequisite to imposition of compensatory fine. State v. Packer, 140 Or App 488, 916 P2d 322 (1996)

Prerequisites of compensatory fine are (1) criminal activity, (2) economic damages and (3) casual relationship between two. State v. Haines, 238 Or App 431, 242 P3d 705 (2010)

Provision authorizes court to order state to share portion of fine imposed under underlying statute with victim but does not itself authorize imposition of fine. State v. Moore, 239 Or App 30, 243 P3d 151 (2010)

137.103 to 137.109

NOTES OF DECISIONS

Type and amount of restitution is limited to that which would be recovered as special damages in civil action and, where subsequent civil action is barred, further restitution is barred. State v. Rodriguez, 88 Or App 429, 745 P2d 811 (1987), Sup Ct review denied; State v. Thompson, 138 Or App 247, 908 P2d 329 (1995)

137.103

NOTES OF DECISIONS

Traffic infraction is not “criminal activity” as defined in this section. State v. Jameson, 37 Or App 151, 586 P2d 380 (1978), Sup Ct review denied

Legislative intent is to make restitution flexible sentencing device by permitting court to order restitution for losses from criminal conduct admitted by defendant, as well as from conduct for which defendant is convicted. State v. Zimmerman, 37 Or App 163, 586 P2d 377 (1978)

Where defendant pleaded guilty to one count of theft but second count, which he expressly denied, was dismissed as result of plea agreement, court lacked authority to order restitution of victim of second theft. State v. Armstrong, 44 Or App 219, 605 P2d 736 (1980), Sup Ct review denied

Where defendant was convicted of theft for stealing guitar from professional musician, costs incurred by victim to rent replacement guitar were proper element of restitution since these costs would be recoverable as special damages in civil action. State v. Lewis, 49 Or App 447, 619 P2d 684 (1980)

Pawnshop to whom defendant sold stolen guitar was “victim” under this section and entitled to restitution under ORS 137.106. State v. Lewis, 49 Or App 447, 619 P2d 684 (1980)

Since insurance company which paid benefits to its insured, where insured was injured by criminal defendant, was subrogated to its insured’s rights, insurance company suffered pecuniary damages and was “victim” under this section. State v. Divers, 51 Or App 351, 625 P2d 681 (1981)

Damage defendant caused to police vehicles in course of committing crimes for which he was convicted were properly recoverable as “pecuniary damages” since these damages could have been recovered in a civil action. State v. Dillon, 292 Or 172, 637 P2d 602 (1981)

Adult and Family Services Division was not “victim” for purposes of this section where defendant was eligible recipient of medical services and he could not have been found civilly liable for them. State v. Dillon, 292 Or 172, 637 P2d 602 (1981)

Where defendants were convicted of failure to perform statutory duties following a motor vehicle accident, injuries resulting from these accidents were not “criminal activities” within meaning of this section. State v. Eastman/Kovach, 292 Or 184, 637 P2d 609 (1981)

Though defendant contended that his admission, made during plea negotiations, of “civil liability” for transactions involving odometer rollbacks was not admission of criminal conduct under this section, court-ordered restitution to known victim of defendant’s act was proper. State v. Davis, 57 Or App 322, 644 P2d 623 (1982)

Order requiring defendant to pay restitution to Salem Police Department for amount received from sale of cocaine to Salem police officers was proper. State v. Pettit, 73 Or App 510, 698 P2d 1049 (1985), Sup Ct review denied

Where defendants obstructed truck traffic to protest logging operations and pleaded no contest to charges of disorderly conduct, restitution order could include special, but not general damages, and damages for lost truck time were improper where company owning trucks would incur cost involved whether trucks were running or sitting still. State v. Heath, 75 Or App 425, 706 P2d 598 (1985)

Where defendant was indicted for unauthorized use of motor vehicle “on or about the 22nd of April,” although van was stolen on April 21, where state offered evidence only of defendant’s use on April 22 he could be sentenced to restitution for pecuniary damages to vehicle that resulted from his April 22 use. State v. Sellers, 76 Or App 552, 709 P2d 768 (1985), Sup Ct review denied

Attorney fees are not recoverable “special damages” if incurred in preparation of civil suit arising out of defendant’s criminal conduct. State v. O’Brien, 96 Or App 498, 774 P2d 1109 (1989), Sup Ct review denied

Court may require restitution for criminal activities that defendant admits even if defendant was not charged with or convicted of those activities. State v. Panther, 99 Or App 184, 781 P2d 407 (1989)

Where company’s labor and service costs constituted pecuniary damages under this section, trial court did not err in ordering defendant to pay costs as restitution under ORS 137.106 for repair of electric meter with which defendant had tampered. State v. Louden, 101 Or App 367, 790 P2d 1182 (1990)

Because sales contract did not allow seller of house to recover incurred sales commission, criminal sentence requiring defendant-buyer to pay restitution for sales commission exceeded maximum allowed by law. State v. Kochajda, 114 Or App 283, 835 P2d 142 (1992)

Attorney fees are recoverable “special damages” if incurred to assure indictment and criminal prosecution, notwithstanding that victim may subsequently file civil suit arising out of defendant’s criminal conduct. State v. Mahoney, 115 Or App 440, 830 P2d 1100 (1992), Sup Ct review denied, as modified by 118 Or App 1, 846 P2d 413 (1993)

“But for” standard of causation applies in determining whether damages are eligible for restitution. State v. Bullock, 135 Or App 303, 899 P2d 709 (1995)

Court may treat replacement value of stolen property as proper measure of pecuniary damages. State v. Wise, 150 Or App 449, 946 P2d 363 (1997)

Person incurs expenses for purpose of receiving restitution if person is subject to those expenses, regardless of whether third party pays or writes off portion of those expenses. State v. Romero-Navarro, 224 Or App 25, 197 P3d 30 (2008), Sup Ct review denied

Person suffers economic damages for purpose of receiving restitution if person expends money on behalf of victim or victim’s estate. State v. Romero-Navarro, 224 Or App 25, 197 P3d 30 (2008), Sup Ct review denied

137.106

NOTES OF DECISIONS

Condition of probation, requiring defendant to make restitution for items which she did not admit taking and which she was not convicted of taking, was improper. State v. Cox, 35 Or App 169, 581 P2d 104 (1978)

Trial court did not have authority to order restitution for traffic infraction, because it did not constitute criminal activity within meaning of this section. State v. Jameson, 37 Or App 151, 586 P2d 380 (1978), Sup Ct review denied; State v. Frey, 53 Or App 124, 631 P2d 349 (1981), Sup Ct review denied

Court had authority to order defendant to make restitution to victims of two burglaries where defendant was convicted of one and charge was dismissed as result of plea negotiations. State v. Zimmerman, 37 Or App 163, 586 P2d 377 (1978)

Where defendant did not offer contrary evidence or request hearing under this section, trial court did not err in ordering amount of restitution based upon victim’s estimate. State v. Ivie, 38 Or App 453, 590 P2d 740 (1979)

Order must specify amount of damages to be repaid and specific schedule for repayment. State v. Johnson, 39 Or App 711, 593 P2d 1216 (1979)

Where, upon resentencing, court set up schedule for repayment of victim and imposed additional restitution for county expenses in providing court-appointed counsel, defendant did not waive, by failure to make timely objection pursuant to this section, his objection to increasing of sanction, which resentencing court lacked authority to do. State v. Miller, 44 Or App 625, 606 P2d 689 (1980)

Where defendant was convicted of theft for stealing guitar from professional musician, costs incurred by victim to rent replacement guitar were proper element of restitution since they would be recoverable as special damages in civil action. State v. Lewis, 49 Or App 447, 619 P2d 684 (1980)

Pawnshop to whom defendant sold stolen guitar was “victim” under ORS 137.103 and entitled to restitution. State v. Lewis, 49 Or App 447, 619 P2d 684 (1980)

Where burglary was committed prior to effective date of this section, it was error for court to order defendant to pay restitution. State v. Crawford, 289 Or 151, 610 P2d 1232 (1980)

Insurance company which paid benefits to its insured who was injured by criminal defendant, suffered pecuniary damages and was victim entitled to restitution. State v. Divers, 51 Or App 351, 625 P2d 681 (1981)

Where defendant admitted his involvement in three thefts in plea petition, while pleading guilty to only one, it was not error for trial court to require restitution to victims of all three crimes. State v. Boswell, 52 Or App 535, 628 P2d 763 (1981), Sup Ct review denied

Restitution is limited to amount that could be recovered as special damages in civil suit. State v. Dillon, 292 Or 172, 637 P2d 602 (1981)

Defendant who was convicted of failure to perform statutory duties following a motor vehicle accident could not be required to pay restitution for damages resulting from the accident because they did not result from defendant’s criminal activities. State v. Eastman/Kovach, 292 Or 184, 637 P2d 609 (1981)

Because restitution is aspect of criminal law, civil right to jury trial is not implicated. State v. Rosenbaum, 57 Or App 11, 643 P2d 1284 (1982); State v. McGinnis, 105 Or App 154, 803 P2d 1525 (1991)

Where defendant contended that his admission, made during plea negotiations, of “civil liability” for transactions involving odometer rollbacks was not admission of criminal conduct under ORS 137.103, court-ordered restitution to known victim of defendant’s act was proper. State v. Davis, 57 Or App 322, 644 P2d 623 (1982)

If loss would not have occurred but for criminal activities of defendant, amount of restitution is determined separately from amount established by conviction or admission. State v. Doty, 60 Or App 297, 653 P2d 276 (1982)

Interest ordered to commence on execution of restitution order was improper because interest is not recoverable as special damages in civil action. State v. Dickenson, 68 Or App 283, 680 P2d 1028 (1984)

Trial court may not order defendant, president of corporation, to pay restitution to victim where defendant did not admit personal liability even though admitting his corporation was liable for restitution purposes. State v. Voetberg, 99 Or App 112, 781 P2d 387 (1989)

Where company’s labor and service costs constituted pecuniary damages under ORS 137.103, trial court did not err in ordering defendant to pay costs as restitution for repair of electric meter with which defendant had tampered. State v. Louden, 101 Or App 367, 790 P2d 1182 (1990)

Where defendant waived his right to be heard and object to imposition of restitution in trial court, defendant waived right to challenge imposition of restitution on appeal. State v. Carpenter, 101 Or App 489, 791 P2d 145 (1990), Sup Ct review denied; State v. Lunski, 101 Or App 495, 791 P2d 146 (1990)

Sentencing court has no authority to order defendant to pay restitution as condition of parole. State v. Gaines, 103 Or App 646, 798 P2d 730 (1990)

Where restitution was ordered without following proper procedure, restitution order was reviewable as disposition exceeding maximum allowed by law. State v. Anderson, 113 Or App 416, 833 P2d 321 (1992); State v. Jones, 113 Or App 425, 833 P2d 320 (1992), Sup Ct review denied

Attorney fees are recoverable “special damages” if incurred to assure indictment and criminal prosecution, notwithstanding that victim may subsequently file civil suit arising out of defendant’s criminal conduct. State v. Mahoney, 115 Or App 440, 838 P2d 1100 (1992), Sup Ct review denied, as modified by 118 Or App 1, 846 P2d 413 (1993)

Where pecuniary damages included future expenses that were reasonably predictable, but amount of which was not readily ascertainable, order to pay actual amount of future expenses was proper. State v. Allen, 122 Or App 587, 858 P2d 176 (1993), Sup Ct review denied

Restitution to parent of child victim was not available where civil recovery of parent’s damages would be based on tort theory not formally adopted by Oregon courts. State v. Carrillo, 125 Or App 52, 865 P2d 379 (1993)

“But for” standard of causation applies in determining whether damages are eligible for restitution. State v. Bullock, 135 Or App 303, 899 P2d 709 (1995)

Because restitution requires proof of causal relationship between criminal activity and pecuniary damage suffered, subsequent damage to stolen property does not automatically impute to thief. State v. Bonnie, 135 Or App 314, 898 P2d 1365 (1995)

Bankruptcy discharge of civil debt to victims, whether occurring before or after restitution order, does not discharge obligation to make restitution imposed as part of criminal sentence. State v. Sprang, 137 Or App 418, 904 P2d 1092 (1995)

Lost profits are includable in restitution award. State v. Jurado, 137 Or App 538, 905 P2d 274 (1995)

Restitution order is not part of presumptive sentence and therefore not precluded from review. State v. Marquez, 139 Or App 379, 912 P2d 390 (1996), Sup Ct review denied

Criminal Injuries Compensation Account is “victim” eligible to receive restitution for expenses paid. State v. Spino, 143 Or App 619, 925 P2d 101 (1996)

Where defendant’s conviction covers criminal activities during specified time period, court may not award restitution for damages arising from events occurring outside time period. State v. Howett, 184 Or App 352, 56 P3d 459 (2002)

Court may not order payment of restitution after finding person guilty except for insanity. State v. Thomas, 187 Or App 762, 69 P3d 814 (2003)

Department of Corrections routine maintenance and operation expenses are not recoverable through restitution by prisoner. State v. Wilson, 193 Or App 506, 92 P3d 729 (2004)

Under pre-2003 version of statute, court is required to consider defendant’s ability to pay only in determining restitution amount and payment terms or conditions, not in deciding whether to impose restitution. State v. Gutierrez, 197 Or App 496, 106 P3d 670 (2005), modified 199 Or App 521, 112 P3d 433 (2005), Sup Ct review denied

Determination of restitution amount is not increase in penalty for offense beyond prescribed statutory maximum requiring jury determination. State v. McMillan, 199 Or App 398, 111 P3d 1136 (2005)

Where jury determined amount of damage to reach criminal verdict, order for restitution in different amount based on preponderance of evidence did not reexamine fact tried by jury. State v. Mendez, 211 Or App 311, 155 P3d 54 (2007), Sup Ct review denied

Court may order restitution without conviction only where record clearly reflects that defendant’s admission leaves no question defendant committed criminal conduct that defendant was not convicted of committing. State v. Thorpe, 217 Or App 301, 175 P3d 993 (2007)

Lack of diligence by prosecution is not “good cause” for delaying entry of judgment requiring defendant to pay restitution. State v. Biscotti, 219 Or App 296, 182 P3d 269 (2008)

Victim’s estate is not person within meaning of statute and, therefore, not entitled to restitution. State v. Patton, 237 Or App 46, 238 P3d 439 (2010), Sup Ct review denied

Where defendant objects to amount of restitution and requests hearing, trial court must accede to defendant’s request. State v. Umphery, 241 Or App 36, 248 P3d 449 (2011)

ATTY. GEN. OPINIONS: Board requirement that parolee make restitution as condition of parole, (1981) Vol 42, p 117

137.109

NOTES OF DECISIONS

Restitution is criminal sanction and not intended to be equivalent of civil award and, although defendant satisfied restitution ordered as part of sentence on conviction for theft involving unlawful obtainment of unemployment benefits, that determination did not collaterally estop plaintiff, administrator of Employment Division, from bringing civil action for recovery of unlawfully obtained benefits because issue resolved in criminal case was not same as issue to be resolved in civil case. Thorne v. Gay, 92 Or App 251, 758 P2d 380 (1988)

137.120

NOTES OF DECISIONS

Offenses before November 1, 1989

There is no requirement that trial court support sentence imposed by explicit reference to presentence report. State v. Rogers, 34 Or App 523, 579 P2d 258 (1978)

Requirements of this section and [former] ORS 144.790 are mandatory, not discretionary, and trial court was required to obtain and consider presentence report and to state on record reasons for its decision, notwithstanding defendants waiver of presentence report. State v. Biles, 34 Or App 531, 579 P2d 259 (1978), aff’d 287 Or 63, 597 P2d 808 (1979)

Reference to presentence report information and recommendation without express statement of court’s reason for following recommendation was insufficient. State v. Smith, 34 Or App 539, 579 P2d 261 (1978), Sup Ct review denied

Trial court’s failure to state reasons for sentence required remand for imposition of new sentence with statement of reasons where sentence was based on plea bargain and there was no objection below. State v. Franklin, 36 Or App 413, 584 P2d 368 (1978), Sup Ct review denied

Although sentencing judge did not explicitly recount facts contained in presentence report, comments at time of sentencing made reasons for sentence sufficiently clear when viewed in light of other reported evidence presented at sentencing proceeding. State v. John, 37 Or App 439, 587 P2d 502 (1978)

Where defendant contended that sentence was invalid because court failed to state reasons pursuant to this section, confession of error by state was not binding on appellate court as trial judge reviewed extensive number of burglaries committed by defendant and prior convictions for robbery. State v. Shipley, 39 Or App 283, 592 P2d 237 (1979)

Trial court’s stated reason for sentencing defendant, “I am punishing you,” was insufficient under this section. State v. Grass, 41 Or App 575, 599 P2d 1203 (1979)

Where trial court had reduced defendant’s conviction of second degree escape to Class A misdemeanor, suspended sentence and placed defendant on probation, court’s failure to comply with this section by failing to state reason for sentence upon probation revocation was not error because this section does not apply to misdemeanors. State v. Larsen, 44 Or App 769, 607 P2d 212 (1980), Sup Ct review denied

Where court at close of sentencing hearing gave no reason for sentence, but merely summarized charges dismissed, stated remaining reduced charge and maximum sentence and then pronounced sentence, and where judgment order, signed by court four days after pronouncing sentence, contained written findings of fact and stated reasons for sentence imposed, court failed to comply with this section and resentencing was required. State v. Evans, 45 Or App 449, 608 P2d 602 (1980)

Defendant’s failure to raise issue at trial does not waive defect caused by court’s failure to state reasons for sentence. State v. Franklin, 62 Or App 660, 661 P2d 946 (1983)

Offenses on or after November 1, 1989

Sentencing guideline rule that subjected convicted defendant to greater presumptive sentence upon finding that defendant’s criminal activity occurred as part of “drug cultivation, manufacture or delivery scheme or network” was unconstitutionally vague under Article I, sections 20 and 21 of Oregon Constitution. State v. Moeller, 105 Or App 434, 806 P2d 130 (1991); State v. Mack, 108 Or App 643, 817 P2d 1321 (1991); State v. Rubio-Landa, 110 Or App 134, 820 P2d 467 (1991)

Where separate criminal acts arise within one general criminal transaction, conviction for first occurring act cannot enhance criminal history score in determining sentence for later occurring act. State v. Plourd, 125 Or App 238, 864 P2d 1367 (1993)

For purposes of determining criminal history, conviction occurs when sentence is pronounced in open court. State v. Plourd, 125 Or App 238, 864 P2d 1367 (1993)

LAW REVIEW CITATIONS: 51 OLR 433 (1972)

137.121

NOTES OF DECISIONS

Presumptive sentence of second offense is not determined by limit on length of consecutive sentences. State v. Nicholas, 118 Or App 232, 846 P2d 1181 (1993)

In calculating incarceration term for consecutive sentences, court must first calculate presumptive sentence for each conviction without departure with total subject to 200 percent rule, then impose departure sentence for each conviction not exceeding twice the presumptive sentence. State v. Determann, 122 Or App 480, 858 P2d 171 (1993), Sup Ct review denied

Imposition of consecutive sentences violating sentencing guidelines 400 percent rule was apparent error of law subject to discretionary review. State v. Morgan, 124 Or App 229, 862 P2d 539 (1993), Sup Ct review denied

Entire indeterminate term of pre-1993 dangerous offender statute is incarceration term subject to limitations on consecutive sentences. State v. Davis, 315 Or 484, 847 P2d 834 (1993). But see State v. Coburn, 146 Or App 653, 934 P2d 579 (1997)

Two hundred percent rule does not apply to sentences derived from different criminal episodes even if single indictment is issued for multiple crimes. State v. Miller, 317 Or 297, 855 P2d 1093 (1993)

Where imposing both gun minimum under ORS 161.610 and consecutive sentences, court must first determine primary offense, then determine length of terms for consecutive sentences by imposing gun minimum term or, if greater, by electing to impose term allowed for consecutive sentences under sentencing guidelines. State v. Johnson, 125 Or App 655, 866 P2d 1245 (1994)

In cases involving consecutive sentences that include incarceration for offenses subject to ORS 137.700, court must first impose mandatory minimum sentence prescribed by ORS 137.700 for subject offenses, then limit imposition of consecutive sentences for all other offenses to not exceed greater of ORS 137.700 mandatory minimum term of incarceration or sentencing guidelines maximum available term for consecutive sentences. State v. Langdon, 151 Or App 640, 950 P2d 410 (1997), aff’d 330 Or 72, 999 P2d 1127 (2000); State v. Quintero, 160 Or App 614, 982 P2d 543 (1999)

137.123

NOTES OF DECISIONS

Where escape sentence was to run consecutively to subsequently imposed burglary sentence, trial court erred in sentencing sequence and technical flaw can be corrected by reversing order of sentences. State of Oregon v. Benedict, 95 Or App 750, 770 P2d 973 (1989)

Trial court was not authorized to order sentence served consecutively to probation imposed in another case by another judge because probation is not “sentence.” State v. Gaither, 97 Or App 576, 776 P2d 595 (1989)

Under this section, which expressly authorizes simultaneous imposition of consecutive sentences, trial court did not err in imposing two consecutive six-month suspended jail sentences on defendant. State ex rel Millard v. Wagy, 99 Or App 274, 782 P2d 949 (1989)

Trial court is required to make findings pursuant to this section when court imposes consecutive sentences. State v. Racicot, 106 Or App 557, 809 P2d 726 (1991)

It was not impossible or illogical for trial court to impose sentences for convictions of burglary, menacing and carrying dangerous weapon consecutively to death sentence. State v. Rose, 107 Or App 85, 810 P2d 1321 (1991)

This section impliedly repealed [former] ORS 137.122. State v. Duran, 108 Or App 282, 814 P2d 182 (1991)

Limits on court’s discretion to impose consecutive terms of imprisonment under this section do not apply where convictions did not arise out of continuous and uninterrupted course of conduct. State v. Duran, 108 Or App 282, 814 P2d 182 (1991)

Where consecutive sentences are imposed and one sentence involves incarceration, probationary term of non-incarceration sentence merges with post-prison supervision period of incarceration sentence. State v. Dummitt, 115 Or App 487, 839 P2d 246 (1992); State v. Brown, 119 Or App 162, 849 P2d 547 (1993), as modified by 126 Or App 631, 869 P2d 904 (1994)

Court did not err in imposing consecutive sentences without making findings required by this section because defendant’s possession of three weapons was not continuous and uninterrupted course of conduct. State v. Padilla, 118 Or App 122, 846 P2d 437 (1993)

Nothing in sentencing guideline rules precludes dispositional departure sentences from being imposed consecutively. State v. Morales-Aguilar, 121 Or App 456, 855 P2d 646 (1993)

Court has power to prohibit counsel from informing jury of possibility that consecutive sentences will be imposed. State v. Williams, 322 Or 620, 912 P2d 364 (1996)

Disposition that child is within jurisdiction of juvenile court following juvenile adjudication is not “sentence” for purposes of imposing consecutive sentences. State v. Trice, 146 Or App 15, 933 P2d 345 (1997)

Court may impose sentence that is partially concurrent and partially consecutive to other sentence. State v. Trice, 159 Or App 1, 976 P2d 569 (1999), Sup Ct review denied

Court that sentences defendant is not bound by indictment allegation that offenses were part of same act or transaction. State v. Bush, 174 Or App 280, 25 P3d 368 (2001), Sup Ct review denied

Where original criminal objective continues to be present, continuous and uninterrupted course of conduct may include closely related events that manifest additional criminal objectives. State v. Kautz, 179 Or App 458, 39 P3d 937 (2002), Sup Ct review denied

Where defendant knowingly admits facts that would support imposition of consecutive sentences, court may rely on admission for sentencing purposes even if admission was made for different purpose. State v. Herrera-Lopez, 204 Or App 188, 129 P3d 238 (2006), Sup Ct review denied

Where multiple crimes arising out of continuous and uninterrupted course of conduct are of equal seriousness, lack of “more serious crime” does not relieve court of duty to make findings of fact supporting consecutive sentences. State v. Loftin, 218 Or App 160, 178 P3d 312 (2008), modified 228 Or App 96, 206 P3d 1208 (2009), Sup Ct review denied

To determine whether offense caused or created risk of causing harm that other offense did not, court must determine offense for which consecutive sentence is contemplated, whether real and risked harms arising from that offense differ from harms arising from other offense, and whether harms unique to that offense are greater than or qualitatively different from harms arising from other offense. State v. Rettmann, 218 Or App 179, 178 P3d 333 (2008)

Consecutive sentences may not be imposed based upon harms caused or risked by multiple offenses arising out of single act. State v. Rettmann, 218 Or App 179, 178 P3d 333 (2008)

Judicial fact-finding enabling imposition of consecutive sentences does not violate federal constitutional right to jury determination. State v. Ice, 346 Or 95, 204 P3d 1290 (2009)

Imposition of consecutive sentences on basis of facts found by court does not violate federal constitutional right to jury determination. Oregon v. Ice, 129 S Ct 711, 172 L Ed 2d 517 (2009)

Consecutive incarceration sanctions imposed as result of multiple probation violations are not consecutive sentences. State v. Newell, 238 Or App 385, 242 P3d 709 (2010)

Where defendant is sentenced to death for murder committed while defendant is serving sentence for prior crime, death sentence shall be imposed presently and not after defendant serves sentence for prior crime. State v. Haugen, 349 Or 174, 243 P3d 31 (2010)

137.124

NOTES OF DECISIONS

Nothing in the Agreement on Detainers law or the Western Interstate Corrections Compact law indicates an intent by the legislature to change the rule that concurrent sentences may be provided only when they may be served in the same institution. State v. Stewart, 6 Or App 264, 487 P2d 899 (1971)

Once defendant begins to serve sentence, court has no jurisdiction to modify or vacate that sentence. State v. Highland, 28 Or App 251, 558 P2d 1298 (1977), Sup Ct review denied

Under this section penitentiary inmates have no right to remain at particular institution and no justifiable expectation that they will not be transferred except for misconduct. Bartholomew v. Reed, 477 F Supp 223 (1979), as modified by 665 F2d 915

Sentencing guidelines may provide for sentence to term of incarceration that is less than statutory minimum to be served in state correctional facility. State v. Pemberton, 226 Or App 285, 203 P3d 326 (2009)

137.170

NOTES OF DECISIONS

The entry of the judgment in the journal is a ministerial act and as such must conform to the oral judgment. State v. Blake, 7 Or App 307, 490 P2d 1026 (1971)

137.180

NOTE: Repealed as of January 1, 2004

NOTES OF DECISIONS

The Oregon recoupment scheme does not violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Fuller v. Oregon, 417 US 40, 40 L Ed 2d 642, 94 S Ct 2116 (1973)

LAW REVIEW CITATIONS: 11 WLJ 288 (1975); 55 OLR 101 (1976)

137.225

NOTES OF DECISIONS

Nothing in this section indicates the legislature intended that the courts should examine straight felony convictions preceding the 1971 code to see if they might have fit as either felonies or misdemeanors if committed after the effective date of the code. State v. Thompson, 20 Or App 61, 530 P2d 532 (1975)

State has standing to appeal expunction order under statute governing appeals from special statutory proceedings. State v. Young, 24 Or App 5, 544 P2d 179 (1976), Sup Ct review denied

Failure to perform duties of driver at scene of accident which resulted in death of person is state traffic offense and therefore not expungeable. State v. Greer, 26 Or App 605, 553 P2d 1087 (1976)

Notwithstanding that three convictions of defendant had been set aside for unconstitutionality of statute on which based, expunction of records thereof was available under this section as it makes no distinction between valid convictions and those subsequently declared invalid. State v. Hammond, 34 Or App 893, 580 P2d 556 (1978)

This section does not give the courts authority to expunge or seal arrest records of persons arrested but not convicted of any crime. Springer v. State, 50 Or App 5, 621 P2d 1213 (1981), Sup Ct review denied

Providing remedy of expunction and sealing of records for certain convicted persons under this section, while providing no comparable remedy to unconvicted persons was not denial of equal protection. Springer v. State, 50 Or App 5, 621 P2d 1213 (1981), Sup Ct review denied

Defendant in civil defamation case could rely on fact as defense that conviction actually occurred notwithstanding that this section entitles convicted person to deny conviction. Bahr v. Statesman Journal, 51 Or App 177, 624 P2d 664 (1981), Sup Ct review denied

Where judgment of costs and disbursements in criminal conviction was discharged in bankruptcy and thus not paid, defendant was nonetheless entitled to expunction under this section; to deny relief would conflict with Bankruptcy Code and violate the Supremacy Clause. State v. Gwyther, 57 Or App 34, 643 P2d 1296 (1982)

This section excludes from its benefits expunction for persons convicted of more than one offense even though convictions occurred in same action for separate counts under same statute. State v. Adams, 57 Or App 725, 646 P2d 37 (1982); State v. Spivak, 130 Or App 153, 880 P2d 964 (1994), Sup Ct review denied

Trial court must find that, since conviction, defendant’s behavior was in some respect “contrary to public law” for it to deny motion to set aside conviction under this section. State v. Bomar, 79 Or App 451, 719 P2d 76 (1986)

Statutory history of this section leaves no doubt that legislature chose policy favoring setting aside convictions rather than leaving decision to judicial discretion. State v. Langan, 301 Or 1, 718 P2d 719 (1986)

Under this section, applicant has burden to prove by preponderance of evidence any disputed affirmative fact required, but may invoke presumption that law has been obeyed. State v. Langan, 301 Or 1, 718 P2d 719 (1986)

Where employment benefits claimant believed that conviction had been expunged and accordingly, answered question on employment application concerning previous criminal conviction by stating he had none, such action, though intentional, was taken in good faith and did not constitute misconduct. Muldrew v. Employment Div., 92 Or App 60, 757 P2d 438 (1988)

Although time to appeal had passed, trial court did not lack subject matter jurisdiction when it set aside order setting aside defendant’s conviction since trial courts retain subject matter jurisdiction as matter of inherent power. State v. Mills, 97 Or App 52, 775 P2d 328 (1989)

Conviction for child abuse cannot be set aside after effective date of statutory amendment that expressly prevents convictions for that offense from being set aside and failure to set aside conviction is not violation of prohibition against ex post facto legislation contained in Art. I, Section 21, Oregon Constitution. State v. Burke, 109 Or App 7, 818 P2d 511 (1991)

Second or subsequent motions to set aside conviction are not barred on claim preclusion grounds because this section requires judge to consider new aggregate of facts every time defendant moves to set aside conviction. State v. Stanford, 111 Or App 509, 828 P2d 559 (1992)

Where defendant was convicted of attempted sexual abuse in 1984, circuit court erred in denying defendant’s motion to set aside conviction under this section. State v. Brown, 117 Or App 551, 844 P2d 939 (1993)

Felony driving while revoked, if committed within preceding 10 years, will make defendant ineligible for having later conviction set aside. State v. Roberts, 121 Or App 54, 853 P2d 1345 (1993), Sup Ct review denied

Classification of felony is determined by classification at time expungement is sought, not at time felony was committed. State v. Blankenship, 129 Or App 87, 877 P2d 674 (1994)

Court’s consideration of subsequent convictions in assessing circumstances and behavior of applicant since conviction may include convictions occurring before 10-year period that immediately precedes filing of motion. State v. Cowling, 139 Or App 454, 912 P2d 428 (1996), Sup Ct review denied

“Other official records” refers to unenumerated reports created by public bodies and memorializing or keeping track of information by print or other means, including investigative and arrest reports. State v. K.P., 324 Or 1, 921 P2d 380 (1996)

“In the case” means that occurrences or events referred to or recorded are related to same aggregate set of operative facts that gave rise to record or conviction to be set aside and sealed. State v. K.P., 324 Or 1, 921 P2d 380 (1996)

Order setting aside conviction and sealing record is appealable as special statutory proceeding under [former] ORS 19.010. State v. K.P., 324 Or 1, 921 P2d 380 (1996)

Court lacks authority to effect post-conviction merger of convictions to qualify person to have conviction set aside. State v. Jansen, 197 Or App 251, 105 P3d 928 (2005)

Reclassification of criminally negligent homicide by 2003 amendments to ORS 163.145 does not make pre-2003 conviction ineligible to be set aside. State v. Soreng, 208 Or App 259, 145 P3d 195 (2006)

Where probation is revoked, probation is not part of “sentence” of court, but behavior leading to revocation is part of circumstances and behavior court may consider in determining whether to grant application. State v. Branam, 220 Or App 255, 185 P3d 557 (2008), Sup Ct review denied

ATTY. GEN. OPINIONS: Access to police reports and records on juveniles by Oregon Law Enforcement Council, (1974) Vol 36, p 782; inapplicability to pardoned ex-offenders, (1976) Vol 38, p 411

137.230

NOTES OF DECISIONS

Conviction takes place within the meaning of this section only after a determination of guilt and a pronouncement of the judgment of the court. Vasquez v. Courtney, 272 Or 477, 537 P2d 536 (1975)

137.275

NOTES OF DECISIONS

Elimination of civil death does not eliminate habeas corpusif petition alleges that prisoner validly in custody is subject to unlawful confinement or restraint or that prisoner is suffering deprivation of legal rights that requires immediate judicial scrutiny and it appears to court that no other timely remedy is available. Penrod/Brown v. Cupp, 283 Or 21, 581 P2d 934 (1978)

This section does not impliedly repeal provisions of ORS 12.160 tolling statute of limitations for prisoners. Harris v. Craig, 299 Or 12, 697 P2d 189 (1985)

This section did not impliedly repeal ORS 109.322 which provides for adoption of minor child without consent of incarcerated parent in certain circumstances. Stursa v. Kyle, 99 Or App 236, 782 P2d 158 (1989)

137.281

NOTES OF DECISIONS

Disenfrachisement of felons does not violate equal protection clause. Franklin v. State of Oregon, 563 F Supp 1310 (1983)

137.290

NOTES OF DECISIONS

Court is not required to make findings as predicate to imposing unitary assessment. State v. Sanchez, 160 Or App 182, 981 P2d 361 (1999), Sup Ct review denied

Because payment of unitary assessment is based upon criminal sentencing judgment rather than finding of guilt, person found guilty except for insanity cannot be required to pay assessment. State v. Gile, 161 Or App 146, 985 P2d 199 (1999)

137.320

NOTES OF DECISIONS

Although it is responsibility of Department of Corrections under this section to give credit for jail time served after arrest for crime for which sentence was imposed, this responsibility does not arise until sheriff who had arrestee confined has complied with sheriff’s statutory duty to deliver statement of number of days defendant was imprisoned prior to delivery to Corrections Department. Gage v. Maass, 306 Or 196, 759 P2d 1049 (1988)

This section does not authorize sentencing judge to order credit for time served, but requires after-sentence custodian to give credit for presentence time served. Nissel v. Pearce, 307 Or 102, 764 P2d 224 (1988); Randolph v. Dept. of Corrections, 139 Or App 79, 910 P2d 1171 (1996), Sup Ct review denied

Defendant held in custody prior to revocation of probation in two cases was not entitled to have time served credited to both sentences. Nissel v. Pearce, 307 Or 102, 764 P2d 224 (1988); Randolph v. Dept. of Corrections, 139 Or App 79, 910 P2d 1171 (1996), Sup Ct review denied

Where issue is other than probation revocation, sentencing court may not allow or deny credit for pre-sentence confinement time. State v. Bullock, 122 Or App 472, 858 P2d 170 (1993)

Defendant sentenced to probation on condition of jail time is entitled to credit for time served after arrest and prior to judgment. Holcomb v. Sunderland, 321 Or 99, 894 P2d 457 (1995)

Execution of concurrent sentences may be commenced at different times. State v. Lebeck, 171 Or App 581, 17 P3d 504 (2000)

ATTY. GEN. OPINIONS: Concurrent Oregon and foreign institution sentences, (1981) Vol. 42, p 182

137.370

NOTES OF DECISIONS

Where probation violator was sentenced to penitentiary for violation, this section did not apply to time previously served as condition of probation, but only to number of days for which he was subsequently incarcerated as result of probation violation. Brown v. Cupp, 31 Or App 1237, 572 P2d 1065 (1977)

Upon probation revocation, sheriff rather than trial judge has responsibility of crediting defendant with time served after arrest. State v. Rudy, 33 Or App 635, 603 P2d 1230 (1979)

Where petitioner was sentenced to life on federal charge in 1965 and to life on state charge later that year, under this section, petitioner’s Oregon sentence was consecutive to federal sentence, commenced when he was delivered to custody of Oregon authorities and not credited with time served on federal sentence. Gray v. Board of Parole, 71 Or App 757, 694 P2d 572 (1984), Sup Ct review denied

Where individual’s temporary leave from Oregon State Prison was revoked because he was arrested on new robbery charges, he was not entitled to credit on robbery sentences under this section for time served at prison between arrest and sentencing. Chambers v. Maass, 92 Or App 283, 758 P2d 393 (1988), Sup Ct review denied

Imposition of sentence without giving credit for 161 days time spent in jail between arrest and date of sentencing was improper as nothing in sentencing guidelines changes statutory provisions that require credit for post-arrest imprisonment. State v. Barber, 113 Or App 603, 832 P2d 51 (1992)

Execution of concurrent sentences may be commenced at different times. State v. Lebeck, 171 Or App 581, 17 P3d 504 (2000)

Person who is on home detention or other pretrial conditional release is not “confined” for purposes of accumulating credit for time served. Curtiss v. Department of Corrections, 212 Or App 42, 157 P3d 279 (2007)

COMPLETED CITATIONS: State v. Penland, 6 Or App 255, 486 P2d 1314 (1971), Sup Ct review denied

ATTY. GEN. OPINIONS: Date when consecutive state sentence imposed on federal prisoner commences, (1980) Vol 40, p 494; Concurrent Oregon and foreign institution sentences, (1981) Vol. 42, p 182

137.390

NOTES OF DECISIONS

This section read together with ORS 137.370 (2) provides that a defendant is entitled to credit on a misdemeanor sentence for time of incarceration arising out of the same charge prior to sentence therefor. State v. Elksnis, 12 Or App 342, 504 P2d 1070 (1973)

137.450

LAW REVIEW CITATIONS: 11 WLJ 288 (1975); 55 OLR 101 (1976)

137.473

NOTES OF DECISIONS

Department of Corrections may not impose nondisclosure requirements on persons who are entitled to attend execution at own discretion. Oregon Newspaper Publishers Association v. Department of Corrections, 329 Or 115, 988 P2d 359 (1999)

“Execution” includes those preparatory actions inextricably linked to administration of lethal drugs. Oregon Newspaper Publishers Association v. Department of Corrections, 329 Or 115, 988 P2d 359 (1999)

137.520

NOTES OF DECISIONS

Provision for recovery of boarding costs from wages of work-release prisoners does not preclude recovery of costs of incarceration of other offenders from other sources. State v. Johnston, 176 Or App 418, 31 P3d 1101 (2001)

137.530

NOTES OF DECISIONS

Hearsay is admissible in the sentencing procedure at least in so far as it may be included in a presentence report. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971), Sup Ct review denied; State v. Woolery, 16 Or App 180, 517 P2d 1212 (1974), Sup Ct review denied

In the presentence report, the court may consider defendant’s prior involvement with the law, although no convictions may have resulted therefrom. State v. Woolery, 16 Or App 180, 517 P2d 1212 (1974), Sup Ct review denied

The rules of evidence which apply during trial have no application to the presentence report. State v. Woolery, 16 Or App 180, 517 P2d 1212 (1974), Sup Ct review denied

COMPLETED CITATIONS: Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972)

LAW REVIEW CITATIONS: 8 WLJ 458-467 (1972)

137.540

NOTES OF DECISIONS

Specific condition prohibiting entry into marriage without court permission was valid. State v. Allen, 12 Or App 455, 506 P2d 528 (1973), Sup Ct review denied

Specific condition prohibiting association with any person ever convicted of crime was not facially invalid. State v. Allen, 12 Or App 455, 506 P2d 528 (1973), Sup Ct review denied

The fact that defendant’s conviction is for an attempt to commit theft would not preclude the court from conditioning probation upon restitution of the amount actually taken, even though a larger amount. State v. Foltz, 14 Or App 582, 513 P2d 1208 (1973), Sup Ct review denied

The “aggrieved party” status is limited to the owner of the automobile damaged. State v. Getsinger, 27 Or App 339, 556 P2d 147 (1976)

“Restitution” means return of sum of money, object or value of object which defendant wrongfully obtained in course of committing crime. State v. Stalheim, 275 Or 683, 552 P2d 829 (1976)

“Reparation” encompasses only reimbursement for victim’s liquidated or easily measurable damages resulting from charged offense, embracing medical expenses, wages actually lost, and reimbursement for easily measurable property damage. State v. Stalheim, 275 Or 683, 552 P2d 829 (1976)

A probationer retains all civil liberties except those which are taken away as conditions of probation and the standard against which the validity of conditions imposed is to be measured is whether they bear a reasonable relationship to the reformation of the offender or the protection of the public; overruling State v. Davis/Travis, 9 Or App 412, 496 P2d 923 (1972), Sup Ct review denied. State v. Culbertson, 29 Or App 363, 563 P2d 1224 (1977)

Condition of probation, requiring defendant convicted of criminally negligent homicide to pay $7,100 to victim’s estate, was improper absent evidence that such sum constituted reparation or reimbursement for liquidated or easily measurable damages actually resulting from the offense. State v. Wanrow, 30 Or App 75, 566 P2d 533 (1977)

In trial of defendant convicted of theft and resale of $18,000 antique auto, court order requiring restitution of $18,000 within ninety days as condition of probation did not set forth so short a repayment period as to make condition impossible, was not inconsistent with court’s prior finding that defendant was indigent for purposes of appointment of counsel, and was not abuse of discretion. State v. Ledder, 31 Or App 487, 570 P2d 994 (1977)

Probation condition, requiring consent of defendant to warrantless searches for drugs of her person, premises, or vehicle at any time, was not demonstrably in aid of her probation following guilty plea to check forgery. State v. Fisher, 32 Or App 465, 547 P2d 354 (1978), Sup Ct review denied

Condition of probation, requiring defendant to make restitution for items which she was not convicted of taking and had not admitted taking, was improper. State v. Cox, 35 Or App 169, 581 P2d 104 (1978)

Where probation condition interferes with marital right, court must consider whether spouse would be bad influence endangering rehabilitation or public safety and whether restriction less than total separation would protect societal interests. State v. Martin, 282 Or 583, 580 P2d 536 (1978); State v. Saxon, 131 Or App 662, 886 P2d 505 (1994)

Condition requiring probationer to submit to polygraph tests could constitutionally be imposed with no more than general finding of court that it was reasonably necessary to accomplish purpose of probation. State v. Age, 38 Or App 501, 590 P2d 759 (1979)

Under former statute, which allowed reparation or restitution to crime victim, estate of homicide victim was not direct victim of crime entitled to restitution. State v. Wanrow, 39 Or App 13, 591 P2d 751 (1979)

Conditions of probation may not be fixed by probation officers. State v. Maag, 41 Or App 133, 579 P2d 838 (1979)

Imposition of probation condition that allowed probation officer to search probationer’s person, residence, or property without warrant at any time was invalid where this condition was imposed by probation officer and not by sentencing court. State v. Stephens, 47 Or App 305, 614 P2d 1180 (1980)

Trial court had no authority to require defendant to pay probation fee. State v. Haynes, 53 Or App 850, 633 P2d 38 (1981), Sup Ct review denied

Where defendant was convicted on two felony counts for crimes committed while on probation for earlier felony conviction and court continued earlier probation but added new conditions by imposing consecutive county jail terms of imprisonment to be served after prison term for most recent convictions, court could act under authority of this section to modify conditions of probation. State v. Walker, 77 Or App 464, 713 P2d 612 (1986), Sup Ct review denied

When defendant is placed on probation and, as condition of that probation, he is ordered to serve 180 days, with 165 days suspended, trial court may require him to serve that 165 days when he violates conditions of probation, and still continue probation. State v. Kreitzer, 85 Or App 151, 735 P2d 1274 (1987)

Trial court had statutory authority to increase DUII defendant’s jail time by modifying conditions of probation although defendant had not violated terms of probation. State v. Jones, 90 Or App 176, 750 P2d 1211 (1988)

Where submission to searches as condition of probation is authorized only if probation officer has reasonable grounds to believe that search will disclose evidence of probation violation, search imposed to verify compliance with conditions of probation fails to conform to statute. State v. Schwab, 95 Or App 593, 771 P2d 277 (1989); State v. Guzman, 164 Or App 90, 990 P2d 370 (1999), Sup Ct review denied

Where defendant pleaded guilty to rape in second degree of girl under age 14, probation condition that defendant not be present in any private residence or vehicle with child under age 18 was proper for protection of public. State v. Crocker, 96 Or App 111, 771 P2d 1026 (1989)

Where trial court imposed as condition of probation that defendant build entire new fence, record that shows cattle strayed through hole in fence not sufficient to support condition of probation that defendant build entire new fence. State v. Holdner, 96 Or App 445, 772 P2d 1382 (1989), Sup Ct review denied

Authority of probation officer to conduct home visit does not encompass authority to conduct search. State v. Altman, 97 Or App 462, 777 P2d 969 (1989); State v. Guzman, 164 Or App 90, 990 P2d 370 (1999), Sup Ct review denied

Court did not err in assessing, as condition of probation, $250 rather than $90 for reimbursement of court-appointed attorney fees since only evidence regarding what state would pay for defendant’s representation was his counsel’s $250 calculation during sentencing. State v. Westby, 99 Or App 371, 781 P2d 1270 (1989)

Special condition of probation may be imposed only for purposes specified by statute and not as additional punishment. State v. Donovan, 307 Or 461, 770 P2d 581 (1989); State v. Qualey, 138 Or App 74, 906 P2d 835 (1995)

Trial court has authority to modify conditions of probation and extend it without finding violation of probation. State v. Stanford, 100 Or App 303, 786 P2d 225 (1990)

Although court may prohibit defendant from possessing and owning firearms as condition of probation, court may not confiscate and destroy defendant’s firearms under this section. State v. Wilson 105 Or App 20, 803 P2d 769 (1990)

Condition of probation requiring confinement for conviction of misdemeanor was impermissible. State v. Wold, 105 Or App 158, 803 P2d 782 (1991); State v. Armstrong, 106 Or App 486, 808 P2d 109 (1991); State v. Taylor, 115 Or App 76, 836 P2d 755 (1992)

In exercising discretion under this section, court may not exceed sentence defined by other statute. State v. Stockton, 105 Or App 162, 803 P2d 1227 (1991)

Department of Corrections, acting through probation officers, is responsible for notifying sentencing court of probation violations. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)

Discretionary immunity under ORS 30.265 does not protect probation officer from liability for exercising reporting duties. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)

Court has no authority to impose jail sentence as condition of probation for misdemeanor offense committed after November 1, 1989. State v. Van Gorder, 108 Or App 333, 813 P2d 1136 (1991)

ORS 813.020 controls misdemeanor DUII convictions, and this section has no application to those convictions. State v. Oary, 109 Or App 580, 820 P2d 857 (1991), as modified by 112 Or App 296, 829 P2d 90 (1992); State v. Taylor, 115 Or App 76, 836 P2d 755 (1992)

Court erred in authorizing searches by probation officer without including requirement they be based on reasonable grounds to believe search would disclose evidence of probation violation. State v. Tejeda, 111 Or App 201, 826 P2d 25 (1992)

Limits placed on defendant’s contact with his wife secured public’s safety and interfered with his marital rights only to permissible degree. State v. Gilkey, 111 Or App 303, 826 P2d 69 (1992)

Evidence that defendant’s codefendant and boyfriend was involved in methamphetamine manufacturing and trafficking and that he had recently been shot in narcotics related incident was sufficient to sustain trial court’s imposition as condition of probation that defendant refrain from associating with him. State v. Quackenbush, 113 Or App 263, 832 P2d 1236 (1992)

Trial court must make fact record that condition of probation is appropriate. State v. Quackenbush, 113 Or App 263, 832 P2d 1236 (1992)

Where, as condition of probation, defendant was required to take Antabuse but order did not make condition subject to medical approval as required by this section and orders concerning urine, blood and breath tests and polygraph tests did not list terms and limitations required by this section, remand for resentencing was required. State v. Robertson, 113 Or App 467, 833 P2d 326 (1992)

Board of Parole erred in imposing parole condition that prohibited petitioner from entering or residing in named county because restriction was broader than necessary to accomplish purpose of protecting victim or other potential victims. Owens v. Board of Parole, 113 Or App 507, 834 P2d 547 (1992)

Trial court has discretion to fashion its own condition of probation if condition serves to reform offender or to protect public. State v. Caffee, 116 Or App 23, 840 P2d 720 (1992), Sup Ct review denied

Retroactive application of amended version of this section violates constitutional proscription against ex post facto laws, because amended version of this section exposes defendant to greater punishment than defendant faced when defendant committed offense. State v. Harding, 116 Or App 29, 840 P2d 113 (1992), Sup Ct review denied

This statute reflects legislative policy that trial courts should have maximum flexibility to determine conditions of probation and modify those conditions “at any time.” State v. Peterson, 116 Or App 418, 841 P2d 666 (1992)

Trial court has continuing jurisdiction to administer probation, which, despite filing of appeal, includes modifying conditions of probation. State v. Peterson, 116 Or App 418, 841 P2d 666 (1992)

Trial court could not require defendant to submit to personal search by police as condition of probation where statute specifically limits such searches to probation officers. State v. Smith, 117 Or App 473, 844 P2d 276 (1992)

Court erred in imposing separate probation conditions for merged offenses. State v. Brown, 122 Or App 632, 857 P2d 915 (1993), Sup Ct review denied

Prohibiting probationer in child endangerment case from residing with spouse if spouse used illegal drugs did not impermissibly interfere with marriage right. State v. McSweeney, 123 Or App 460, 860 P2d 305 (1993)

Provision identifying personnel authorized to perform searches related to parole violations did not restrict searches by other personnel for other purposes. State v. Campbell, 128 Or App 592, 876 P2d 799 (1994)

Probationer’s mere acquiescence to search by probation officer can constitute consent where evidence of undue coercion is absent. State v. Davis, 133 Or App 467, 891 P2d 1373 (1995), Sup Ct review denied

“Reasonable grounds” for probation officer to search requires more than reasonable suspicion but less than probable cause. State v. Gulley, 324 Or 57, 921 P2d 396 (1996)

Probation officer has “reasonable grounds” to search if possessing information that causes officer to believe probationer is violating condition of probation and that search of probationer’s person, residence, vehicle or property would disclose evidence of violation. State v. Gulley, 324 Or 57, 921 P2d 396 (1996)

Court may impose requirement that defendant pay cost of incarceration as general condition of probation. State v. Johnston, 176 Or App 418, 31 P3d 1101 (2001)

Sanctions available upon failure to abide by probation conditions are alternatives that are not mutually exclusive. State v. Melton, 189 Or App 411, 76 P3d 156 (2003)

State may separately adjudicate discrete probation violations. State v. Melton, 189 Or App 411, 76 P3d 156 (2003)

Where probation conditions are reasonably related to offense, court is not required to make particularized factual findings before imposing sex offender conditions on person convicted of nonsex offense. State v. McCollister, 210 Or App 1, 150 P3d 7 (2006)

Failure to make restitution payments, alone, is not sufficient to establish that purpose of probation are not being served. State v. Kacin, 237 Or App 66, 240 P3d 1099 (2010)

LAW REVIEW CITATIONS: 10 WLJ 196 (1974); 55 OLR 101 (1976); 24 WLR 1159 (1988)

137.545

(formerly 137.550)

NOTES OF DECISIONS

It is not necessary to revocation that the person on probation be convicted of a new crime but only that the trial judge be satisfied that the purposes of probation are not being served or that the terms thereof have been violated. State v. Green, 6 Or App 487, 488 P2d 1196 (1971); State v. Golden, 8 Or App 215, 493 P2d 57 (1972)

Since the grant, denial or revocation of probation is discretionary with the trial court, the question is whether the trial court acted arbitrarily or capriciously. State v. Green, 6 Or App 487, 488 P2d 1196 (1971); State v. Golden, 8 Or App 215, 493 P2d 57 (1972)

Defendant whose sentence was suspended could not challenge execution of sentence with a claim that the state waited an unreasonable length of time to move for execution, when reason for delay was defendant’s self-concealment. State v. Taylor, 16 Or App 269, 517 P2d 1233 (1974)

Defendant’s probation may be revoked even though he is acquitted of the charge which forms the basis of his probation revocation. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

Since there is a full record of evidence and proceedings on which the court based its decision to revoke probation, the court need not give defendant a written statement of evidence upon which its decision was based. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

Proof by a preponderance of the evidence is sufficient in probation revocation proceedings. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

A court in sentencing may not increase the original sentence, even in light of new facts or changing circumstances. State v. Stewart, 21 Or App 555, 535 P2d 1389 (1975)

A court is without authority to revoke probation for a crime committed during the probationary period when revocation proceedings have not been initiated before the probationary period has expired. State v. O’Neal, 24 Or App 423, 545 P2d 910 (1976)

If revocation proceedings are properly initiated within the probationary period, a court may retain jurisdiction to revoke probation after the period has expired. State v. O’Neal, 24 Or App 423, 545 P2d 910 (1976)

The trial court had authority, after revoking probation, to impose a sentence to run consecutive to a sentence imposed during probation for a crime committed during probation. State v. Monahan, 29 Or App 791, 564 P2d 1374 (1977); State v. McBride, 103 Or App 642, 798 P2d 728 (1990)

Under this section, probation violator sentenced to penitentiary was entitled to credit on penitentiary sentence for good time credits (ORS 169.110) and work time credits (ORS 169.120) earned while confined in county jail. Brown v. Cupp, 31 Or App 1237, 572 P2d 1065 (1977)

Apparent legislative purpose of this section is to harmonize state with county good time statutes. Brown v. Cupp, 31 Or App 1237, 572 P2d 1065 (1977)

District court judge who, without having received sworn complaint, issued arrest warrant for violation of conditions of probation was not acting outside jurisdiction and was immune from liability for false arrest. Higgins v. Redding, 34 Or App 1029, 580 P2d 580 (1978), Sup Ct review denied

Order revoking probation and reinstating it under same conditions was appealable probation revocation rather than modification. State v. Hovator, 37 Or App 557, 588 P2d 56 (1978)

Requirement for presentence report does not apply to revocation proceeding where court causes sentence previously imposed to be executed. State v. Gustafson, 38 Or App 437, 590 P2d 733 (1979)

Under this statute, it is not necessary that formal motion to quash evidence be made in order to raise improper search and seizure if, before the court rules on the revocation, defendant makes it known to court that evidence justifying revocation was illegally seized. State v. Nettles, 287 Or 131, 597 P2d 1243 (1979). Distinguished in State ex rel Juv. Dept. v. Rogers, 314 Or 114, 836 P2d 127 (1992)

Where defendant was twice tried and convicted for same offense and had had his probation revoked, he could be given longer sentence than that imposed following first conviction. State v. Holmes, 287 Or 613, 601 P2d 1213 (1979)

Failure to make support payments, to reimburse court for costs of court-appointed attorney and to apprise court in writing of address and employment were sufficient grounds for revoking probation of defendant convicted of second decree criminal mistreatment. State v. Reed, 45 Or App 185, 608 P2d 175 (1980)

Under this section, where court revoked probation and ordered execution of sentence previously imposed, it was without power to modify that sentence to make it run consecutively to later imposed sentence. Fergelic v. Cupp, 53 Or App 190, 631 P2d 800 (1981), Sup Ct review denied

Where defendant was convicted of guiding without license, placed on probation and, while appeal was pending, probation was revoked, though Court of Appeals had jurisdiction of case on appeal, trial court retained authority to enforce judgment and revoke probation any time during probation period. State v. Link, 87 Or App 556, 743 P2d 737 (1987)

Once court has imposed sentence and placed defendant on probation it may revoke probation but does not have authority under this section to amend sentence and, accordingly, trial court could not revoke probation and impose new sentence to run consecutively to sentence for subsequent crime. State v. Haines, 90 Or App 347, 752 P2d 333 (1988)

Where court found that defendant’s probation needed to be modified and original probation would expire before defendant could benefit from modification, trial court did not abuse its discretion in extending period of probation. State v. Stanford, 100 Or App 303, 786 P2d 225 (1990)

Authority to order probation is conditioned on suspension or execution of sentence and failure to meet condition renders original probation order void. State v. Reimers, 102 Or App 192, 793 P2d 1382 (1990), Sup Ct review denied

Sentence, once imposed, cannot be retroactively altered to run consecutively to later sentence; former and later sentences must run concurrently. State v. McBride, 103 Or App 642, 798 P2d 728 (1990)

Bench warrant meeting requirements of ORS 137.060 is sufficient for purposes of this section. State v. Vaughn, 105 Or App 518, 805 P2d 733 (1991)

Probation officer was not entitled to absolute judicial immunity for failure to arrest probationer upon learning of violations of conditions of probation. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)

Discretionary immunity under ORS 30.265 does not protect probation officer from liability for arrest decisions under this section. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)

Court has authority to extend probation without finding of violation. State v. Stuve, 111 Or App 197, 826 P2d 24 (1992), Sup Ct review denied

Failure to undertake parole revocation hearing and execution of suspended sentence until after defendant completed incarceration period for another charge was not prejudicial because there is no right to concurrent sentence. State v. Dunn, 123 Or App 288, 859 P2d 1169 (1993), Sup Ct review denied

Arrest authority does not create probation officer duty to protect public from criminal activity of probation violator. Kim v. Multnomah County, 138 Or App 417, 909 P2d 886 (1996), aff’d 328 Or 140, 970 P2d 631 (1998)

1989 amendment making credit for time served as probation condition discretionary violates constitutional prohibition against ex post facto laws where applied to crimes committed before effective date of amendment. Haas v. Hathaway, 144 Or App 478, 928 P2d 331 (1996)

Defendant does not have right under United States Constitution to confront witnesses in probation revocation proceeding. State v. Gonzalez, 212 Or App 1, 157 P3d 266 (2007)

COMPLETED CITATIONS: Portland v. Olson, 4 Or App 380, 481 P2d 641 (1971), Sup Ct review denied; State v. Morasch, 5 Or App 211, 483 P2d 474 (1971), Sup Ct review denied; State v. Ragghianti, 5 Or App 498, 484 P2d 1125 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 11 WLJ 288, 289 (1975)

137.550

See annotations under ORS 137.545.

137.551

NOTES OF DECISIONS

Where court imposes minimum term following probation revocation for felonies committed before November 1, 1989, requirement that release date be consistent with probation revocation release date under sentencing guidelines does not apply unless Board votes pursuant to ORS 144.110 to override minimum term. Houck v. Board of Parole, 125 Or App 461, 865 P2d 476 (1993), Sup Ct review denied

137.570

ATTY. GEN. OPINIONS: Supervision and transfer of probationer by county participating in community corrections program, (1982) Vol. 42, p 389

137.593

NOTES OF DECISIONS

Authority of sentencing judge who revokes probation to require period of incarceration not exceeding 180 days for offender sentenced to custody of county supervisory authority does not limit authority of judge to impose sentence of incarceration otherwise allowed by law. State v. Ferguson, 228 Or App 1, 206 P3d 1145 (2009)

137.630

NOTES OF DECISIONS

Imposition of probation condition which allowed probation officer to search probationer’s person, residence, or property without warrant at any time was invalid where this condition was imposed by probation officer and not by sentencing court. State v. Stephens, 47 Or App 305, 614 P2d 1180 (1980)

Probation officer duties do not create duty to protect public from criminal activity of probation violator. Kim v. Multnomah County, 138 Or App 417, 909 P2d 886 (1996), aff’d 328 Or 140, 970 P2d 631 (1998)

137.635

NOTES OF DECISIONS

Because defendant cannot be released on parole before expiration of determinate sentence and defendant committed crime before this section took effect, judgment providing that defendant serve term pursuant to this section requires resentencing. State v. Gouveia, 116 Or App 86, 840 P2d 753 (1992)

Legislature intended that provision denying term reductions also apply to felonies committed after November 1, 1989, and sentenced under ORS 421.121. Curry v. Grill, 125 Or App 507, 866 P2d 1237 (1993)

“Maximum sentence otherwise provided by law” restriction requires court imposing sentence that exceeds presumptive guideline sentence to make departure findings. State v. Woodin, 131 Or App 171, 883 P2d 1332 (1994)

Order that defendant pay money as condition of post-prison supervision is properly interpreted as imposition of sentence with delayed payment scheduled. State v. Knupp, 140 Or App 10, 914 P2d 33 (1996); State v. Larson, 144 Or App 611, 927 P2d 1117 (1996)

Defendant was previously convicted of listed felony “as defined in” relevant ORS section if elements of felony committed in previous conviction are same as those for listed felony. State v. Andre, 142 Or App 285, 920 P2d 1145 (1996), Sup Ct review denied; State v. Rosson, 145 Or App 574, 931 P2d 807 (1997), Sup Ct review denied

Person has been “previously convicted” if found guilty by plea or verdict of prior listed crime before committing listed crime for which sentence is being imposed. State v. Allison, 143 Or App 241, 923 P2d 1224 (1996), Sup Ct review denied

For multiple crimes subject to sentencing under ORS 137.700, maximum sentence means sentence that is greater of statutory minimum under ORS 137.700 or maximum consecutive sentences under sentencing guidelines. State v. Sullivan, 172 Or App 688, 19 P3d 1001 (2001)

137.637

NOTES OF DECISIONS

Where minimum determinative sentence under statute exceeds sentence available under guidelines, imposition of downward departure is conditioned upon statutory criteria, not findings required under guidelines for departure. State v. Bergeson, 138 Or App 321, 908 P2d 835 (1995), Sup Ct review denied

137.663 to 137.673

NOTES OF DECISIONS

Sentencing Guidelines do not violate Article I, section 15, Article I, section 16 or Article III, section 1 of the Oregon Constitution. State v. Spinney, 109 Or App 573, 820 P2d 854 (1991)

137.669

NOTES OF DECISIONS

Multiple crimes from single criminal episode cannot be used to increase defendant’s criminal history score. State v. Seals, 113 Or App 700, 833 P2d 1344 (1992)

Rule for calculating criminal history applies equally where acts from unrelated criminal episodes are combined in one proceeding and sentences for separate acts are separately imposed regardless of whether proceeding under one indictment or more. State v. Miller, 317 Or 297, 855 P2d 1093 (1993)

Where charges under two indictments are sentenced at same hearing, conviction under first indictment can be counted in criminal history as prior conviction in determining sentence for conviction under second indictment. State v. Bucholz, 317 Or 309, 855 P2d 1100 (1993)

Crimes committed separately, even if sentenced in same proceeding, are unrelated incidents and are not part of single criminal episode. State v. Bucholz, 317 Or 309, 855 P2d 1100 (1993)

137.671

NOTES OF DECISIONS

Where court clearly stated it was not imposing sentence departure because of defendant’s status as illegal alien but because of his absolute disregard for any laws, and imposition of presumptive probationary sentence would not have accomplished goals of guidelines, departure sentence was proper. State v. Morales-Aguilar, 121 Or App 456, 855 P2d 646 (1993)

Upward departure sentences that require judicial findings of fact and are not based on facts found by jury violate Sixth Amendment to United States Constitution. State v. Sawatzky, 195 Or App 159, 96 P3d 1288 (2004)

Facts establishing substantial and compelling reasons for exceeding presumptive sentence under sentencing guidelines, other than fact of prior conviction, must be determined by jury or admitted by defendant. State v. Dilts, 337 Or 645, 103 P3d 95 (2004)

Trial court is authorized to have jury determine whether state has proven existence of sentence enhancing factors, but trial court determines whether proven sentence enhancing factors justify imposition of departure sentence. State v. Upton, 339 Or 673, 125 P3d 713 (2005)

Defendant may elect to have judge, rather than jury, determine existence of aggravating facts for purposes of sentence enhancement. State v. Gornick, 340 Or 160, 130 P3d 780 (2006)

137.700 to 137.707

NOTES OF DECISIONS

Mandatory sentences for violent crimes do not violate Oregon Constitution Article III, section 1 (separation of powers); pre-1996 version of Article I, section 15 (no vindictive justice); or Article I, section 16 (cruel and unusual punishment). State ex rel Caleb v. Beesley, 326 Or 83, 949 P2d 724 (1997)

Sentencing disparity between crimes bearing mandatory minimum sentence and other crimes in same block of sentencing guidelines grid does not violate proportionality requirement of section 16, Article I of Oregon Constitution. State v. Ferman-Velasco, 333 Or 422, 41 P3d 404 (2002)

Mandatory minimum sentencing scheme does not violate guarantee under United States Constitution concerning cruel and unusual punishment, right to allocution or right to counsel. State v. Ferman-Velasco, 333 Or 422, 41 P3d 404 (2002)

137.700

NOTES OF DECISIONS

Pre-1995 amendments

Filing of delinquency petition in juvenile court and seeking remand is not required where juvenile is charged with listed crime. State v. Lawler, 144 Or App 456, 927 P2d 99 (1996), Sup Ct review denied

Where juvenile is convicted of listed crime, ORS 161.620 prohibition against mandatory minimum sentence for juvenile does not apply. State v. Lawler, 144 Or App 456, 927 P2d 99 (1996), Sup Ct review denied

Minimum-sentence requirement does not violate constitutional provisions regarding equal protection, right of allocution, reformative purpose or separation of powers. State ex rel Huddleston v. Sawyer, 324 Or 597, 932 P2d 1145 (1997)

In general

Minimum-sentence requirement does not violate constitutional provision against disproportionate sentences. State v. George, 146 Or App 449, 934 P2d 474 (1997)

Prohibition against reducing incarceration period by allowing post-prison supervision does not conflict with Oregon Criminal Justice Commission rule requiring that incarceration period be followed by post-prison supervision period. State v. Lewis, 150 Or App 257, 945 P2d 661 (1997)

In cases involving consecutive sentences that include incarceration for described offenses, court must first impose mandatory minimum sentence prescribed for described offenses, then limit imposition of consecutive sentences for all other offenses to not exceed greater of mandatory minimum term of incarceration under this section or sentencing guidelines maximum available term for consecutive sentences. State v. Langdon, 151 Or App 640, 950 P2d 410 (1997), aff’d 330 Or 72, 999 P2d 1127 (2000); State v. Skelton, 153 Or App 580, 957 P2d 585 (1998), Sup Ct review denied; State v. Quintero, 160 Or App 614, 982 P2d 543 (1999); State v. Sullivan, 172 Or App 688, 19 P3d 1001 (2001)

Where mandatory minimum sentence exceeds maximum guidelines sentence, minimum sentence requirement supersedes sentencing guidelines limit. State v. Ferman-Velasco, 157 Or App 415, 971 P2d 897 (1998), aff’d 333 Or 422, 41 P3d 404 (2002)

LAW REVIEW CITATIONS: 82 OLR 1 (2003)

137.707

NOTES OF DECISIONS

Mandatory minimum sentence of 75 months for sexual abuse committed by minor with no previous record was not unconstitutionally disproportionate punishment. State v. Rhodes, 149 Or App 118, 941 P2d 1072 (1997), Sup Ct review denied

Where defendant over age 18 is tried for offense committed while juvenile, conviction on lesser included offense does not result in transfer of matter to juvenile court for disposition. State v. Pike, 177 Or App 151, 33 P3d 374 (2001), Sup Ct review denied

For purposes of calculating age of person at time of offense, person is considered to have attained higher age at midnight commencing person’s birthday. Coley v. Morrow, 183 Or App 426, 52 P3d 1090 (2002), Sup Ct review denied

LAW REVIEW CITATIONS: 82 OLR 1 (2003)

137.712

NOTES OF DECISIONS

“Conviction” refers to finding of guilt, not entry of judgment. State v. Isbell, 178 Or App 523, 38 P3d 272 (2001)

Evidence indicating that defendant does not qualify for downward departure from sentencing guidelines is not punishment-enhancing evidence requiring determination by jury. State v. Crescencio-Paz, 196 Or App 655, 103 P3d 666 (2004), Sup Ct review denied

Whether defendant represented by words or conduct that defendant possessed deadly weapon is determined by personal conduct of defendant, not by conduct of accomplice. State v. Arnold, 214 Or App 201, 164 P3d 334 (2007)

Juvenile violates condition of probation by committing “new crime” if juvenile is adjudicated to have committed act that would be crime if committed by adult. State v. Bowden, 217 Or App 133, 174 P3d 1073 (2007)

137.717

NOTES OF DECISIONS

Sentence exceeding required departure sentence of 13 months incarceration requires making findings supporting additional departure. State v. Bagley, 158 Or App 589, 976 P2d 75 (1999)

Mandatory minimum sentence under 1997 version of this section superseded conflicting sentencing guideline providing shorter limit on consecutive sentences. State v. Young, 183 Or App 400, 52 P3d 1102 (2002)

Although presumptive sentence is described as being applicable when court sentences person, defendant is not entitled to retroactive application of favorable amendments adopted after commission of offense but before sentencing. State v. Sauer, 205 Or App 428, 134 P3d 1050 (2006), Sup Ct review denied

Whether convictions arose out of same criminal episode is traditional factor to be considered by judge at sentencing unless it requires factfinding beyond determination of what is in court records. State v. Mallory, 213 Or App 392, 162 P3d 297 (2007), Sup Ct review denied

“Comparable offense” means conduct criminalized by Oregon offense has enough characteristics or qualities in common with conduct criminalized by other offense to make comparison appropriate. State v. Escalera, 223 Or App 26, 194 P3d 883 (2008), Sup Ct review denied

LAW REVIEW CITATIONS: 75 OLR 1223 (1996)

137.719

NOTES OF DECISIONS

Imposition of life sentence on recidivist sex offender does not violate requirement in section 16, Article I of Oregon Constitution, that punishment be proportional to offense. State v. Wheeler, 343 Or 652, 175 P3d 438 (2007)

Whether prior court disposition constitutes sentence depends on whether disposition was classified as sentence at time that court ordered disposition, not on whether disposition currently is classified as sentence. Gordon v. Hall, 232 Or App 174, 221 P3d 763 (2009)

137.750

NOTES OF DECISIONS

Application to crimes committed prior to enactment of statute, but before equivalent constitutional provision was declared void ab initio, does not increase quantum of punishment for offense in violation of ex post facto prohibition of Oregon Constitution. State v. Grimes, 163 Or App 340, 986 P2d 1290 (1999), Sup Ct review denied

Judicial finding that defendant may not be considered for beneficial modification of presumptive sentence is not finding of fact that increases maximum penalty permitted for conviction. State v. Clark, 205 Or App 338, 134 P3d 1074 (2006), Sup Ct review denied

137.765

NOTES OF DECISIONS

Facts supporting sexually violent dangerous offender status must be determined by jury or admitted by defendant at trial. State v. Hopson, 220 Or App 366, 186 P3d 317 (2008), modified 228 Or App 91, 206 P3d 1206 (2009)

137.767

NOTES OF DECISIONS