Curry v. Grill

866 P.2d 1237, 125 Or. App. 507, 1993 Ore. App. LEXIS 2131
CourtCourt of Appeals of Oregon
DecidedDecember 22, 1993
Docket92C-11252; CA A77726
StatusPublished
Cited by3 cases

This text of 866 P.2d 1237 (Curry v. Grill) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Curry v. Grill, 866 P.2d 1237, 125 Or. App. 507, 1993 Ore. App. LEXIS 2131 (Or. Ct. App. 1993).

Opinion

De MUNIZ, J.

Plaintiff appeals from a judgment dismissing his petition for writ of habeas corpus. ORS 34.680(1). We affirm.

Plaintiff was convicted of burglary in the first degree in 1985. In 1992, he was again convicted of burglary in the first degree and was sentenced to 24 months in prison. He filed a petition for a writ of habeas corpus in July, 1992, alleging that the Department of Corrections (DOC) had wrongfully determined that the sentence imposed for the 1992 burglary conviction is subject to ORS 137.635.1 The trial court issued a writ on plaintiffs petition, and defendant filed a return and a motion to dismiss. The trial court granted defendant’s motion to dismiss.

We review the dismissal of a petition for habeas corpus relief for errors of law. Bedell v. Schiedler, 307 Or 562, 564, 770 P2d 909 (1989); Weidner v. Zenon, 124 Or App 314, 316, 862 P2d 550 (1993). Plaintiff argues that DOC erred in denying him a reduction in the term of his 1992 sentence. ORS 421.120(1) provides that, if an inmate demonstrates good conduct, the inmate is entitled to time credits that reduce the length of the sentence.2 ORS 137.635(1) provides that, if a court sentences a defendant who has previously been [510]*510convicted of a felony listed in the statute, the defendant shall not be eligible to receive a term reduction pursuant to ORS 421.120. Burglary in the first degree is one of the felonies listed in ORS 137.635(2).

Plaintiff asserts that, despite two burglary convictions, he is not subject to the provision of ORS 137.635 that denies sentence reductions. He points out that ORS 137.635 refers to ORS 421.120 and that ORS 421.120(3) provides that <£[t]he provisions of [ORS 421.120] shall apply only to offenders sentenced for felonies committed prior to November 1, 1989.” Plaintiff then notes that he committed his second burglary after 1989. Accordingly, he argues, ORS 421.120 does not apply to his sentence, and neither does ORS 137.635, because it refers to ORS 421.120. Instead, plaintiff contends that his sentence comes within ORS 421.121(1), which applies to felonies committed on or after November 1, 1989, and entitles him to a term reduction.

Defendant agrees that ORS 137.635 refers to ORS 421.120, not to ORS 421.121, and that ORS 421.120 applies only to offenders sentenced for felonies committed prior to November 1, 1989, before plaintiffs conviction here. Defendant argues, however, that plaintiff is not eligible for a term reduction pursuant to ORS 421.121(1), which provides:

“Except as provided in ORS 137.635, each inmate sentenced to the custody of the department for felonies committed on or after November 1, 1989, shall be eligible for a reduction in the term of incarceration for appropriate institutional behavior, as defined by rule of the Department of Corrections, and for participation in the functional literacy program described in ORS 421.084.” (Emphasis supplied.)

Defendant contends that ORS 421.121(1) expressly states that term reductions do not apply to offenders sentenced under ORS 137.635 and asserts that the omission of a reference in ORS 137.635 to ORS 421.121(1) occurred as a result of the codification process.

Defendant points out that ORS 137.635 did not become effective until after the sentencing guidelines were enacted. State v. Haydon, 116 Or App 347, 352, 842 P2d 410 (1992). As part of the guidelines legislation, the 1989 legislature enacted provisions that amended ORS 421.120 to expressly apply only to preguideline sentences. See, e.g., Or [511]*511Laws 1989, ch 790, § 56(3). The legislature also enacted new provisions setting out term reductions to apply to guideline sentences and directed that those provisions be added to ORS chapter 421. Or Laws 1989, ch 790, § 59. One of the new provisions that the legislature added to chapter 421 was section 60. Instead of codifying section 60, which provides for term reductions, as part of ORS 421.120, legislative counsel codified it as part of ORS 421.121. See Or Laws 1989, ch 790, § 59. We agree with defendant that the language in section 60 that states, “Except as provided in * * * Ballot Measure 4,”3 shows the legislature’s intent that section 60, which was codified as ORS 421.121

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Bluebook (online)
866 P.2d 1237, 125 Or. App. 507, 1993 Ore. App. LEXIS 2131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curry-v-grill-orctapp-1993.