State v. Hallin

602 P.2d 1134, 43 Or. App. 401, 1979 Ore. App. LEXIS 3390

• Court: Court of Appeals of Oregon
• Decided: November 26, 1979
• Docket: C 78-04-06295, CA 14421
• Status: Published

Opinion

JOSEPH, P.J.

On August 15, 1978, a judgment was entered on lefendant’s conviction on a charge of felony hit and un. He was sentenced to five years; execution of the entence was suspended and he was placed on proba-ion. On January 15, 1979, an order was entered reeking probation and directing execution of the senence previously imposed. On January 23, 1979, the ourt entered an "ORDER VACATING SENTENCE ’REVIOUSLY IMPOSED AND GRANTING NEW ’ROBATION,” which read in material part:

"[T]he sentence previously imposed herein under date of September 15, 1978, and ordered executed by order of this court under date of January 15,1979, be and the same is hereby vacated.

"It is adjudged that imposition of sentence is suspended and defendant placed on probation ***.”

On May 1, 1979, an order was entered revoking proba-on, imposing a five-year sentence and ordering execution of the sentence. The defendant urged upon the dal court that a new pre-sentence investigation was squired under ORS 144.790(1) because the 1978 sen-¡nce had been vacated.

Although the record is perfectly clear that the trial idge did not intend on January 23 to go beyond íerely reinstating defendant’s probation, the order hich he signed vacated the 1978 sentence. The order hich the judge signed is controlling (State v. Swain-Goldsmith, 267 Or 527, 517 P2d 684 (1974)), and when the May order was made the court was acting as a sentencing court” within the meaning of ORS 14.790. State v. Gustafson, 38 Or App 437, 590 P2d 733 (1979). The court was, therefore, required to order new pre-sentence report.

Reversed and remanded for resentencing.