State v. Couraud

Court of Appeals of Oregon

State v. Couraud

848 P.2d 628, 118 Or. App. 550, 1993 Ore. App. LEXIS 430

CourtCourt of Appeals of Oregon

DecidedMarch 17, 1993

DocketCR10364; CA A73035

StatusPublished

Cited by1 cases

This text of 848 P.2d 628 (State v. Couraud) 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

State v. Couraud, 848 P.2d 628, 118 Or. App. 550, 1993 Ore. App. LEXIS 430 (Or. Ct. App. 1993).

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Opinion

WARREN, P. J.

Defendant was convicted of assault in the fourth degree, ORS 163.160, assault on a public safety officer, ORS 163.208, and criminal trespass in the second degree. ORS 164.245. The court suspended imposition of sentence and placed defendant on probation for 24 months. As a condition of probation, the court ordered defendant to serve 30 days in the county jail. Defendant contends that the court erred in imposing jail time as a condition of probation. We agree.

Defendant committed his crimes on February 12, 1991. Between that time and the time of sentencing, the legislature amended ORS 137.540(2) to authorize trial courts to impose jail time as a special condition of probation for misdemeanors. In State v. Brown, 115 Or App 327, 329, 838 P2d 624 (1992), we concluded that the legislature intended that amendment to apply retroactively to any misdemeanor committed on or after November 1, 1989. Nevertheless, because the issue was not preserved, we did not decide in that case whether retroactive application of ORS 137.540(2) would violate the ex post facto clause of the Oregon Constitution.¹ In State v. Harding, 116 Or App 29, 33, 840 P2d 113 (1992), we reached that issue and concluded that ORS 137.540(2) could not be applied retroactively. Consequently, the court erred in imposing jail time as a special condition of defendant’s probation.

Defendant also contends that the court erred in failing to merge his conviction for assault in the fourth degree into his conviction for assaulting a public safety officer. The state concedes that error, and we accept its concession. Nevertheless, because the court did not impose a sentence for assault in the fourth degree, we need not remand for resentencing.

Conviction for assault in the fourth degree vacated; jail confinement as a condition of probation vacated; otherwise affirmed.

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WARREN, P. J.

Defendant was convicted of assault in the fourth degree, ORS 163.160, assault on a public safety officer, ORS 163.208, and criminal trespass in the second degree. ORS 164.245. The court suspended imposition of sentence and placed defendant on probation for 24 months. As a condition of probation, the court ordered defendant to serve 30 days in the county jail. Defendant contends that the court erred in imposing jail time as a condition of probation. We agree.

Defendant committed his crimes on February 12, 1991. Between that time and the time of sentencing, the legislature amended ORS 137.540(2) to authorize trial courts to impose jail time as a special condition of probation for misdemeanors. In State v. Brown, 115 Or App 327, 329, 838 P2d 624 (1992), we concluded that the legislature intended that amendment to apply retroactively to any misdemeanor committed on or after November 1, 1989. Nevertheless, because the issue was not preserved, we did not decide in that case whether retroactive application of ORS 137.540(2) would violate the ex post facto clause of the Oregon Constitution.¹ In State v. Harding, 116 Or App 29, 33, 840 P2d 113 (1992), we reached that issue and concluded that ORS 137.540(2) could not be applied retroactively. Consequently, the court erred in imposing jail time as a special condition of defendant’s probation.

Defendant also contends that the court erred in failing to merge his conviction for assault in the fourth degree into his conviction for assaulting a public safety officer. The state concedes that error, and we accept its concession. Nevertheless, because the court did not impose a sentence for assault in the fourth degree, we need not remand for resentencing.

Conviction for assault in the fourth degree vacated; jail confinement as a condition of probation vacated; otherwise affirmed.

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Bluebook (online)

848 P.2d 628, 118 Or. App. 550, 1993 Ore. App. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-couraud-orctapp-1993.

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