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State v. Maddox

564 P.2d 1372, 29 Or. App. 787, 1977 Ore. App. LEXIS 2445
CourtCourt of Appeals of Oregon
DecidedJune 6, 1977
Docket76-07-09385, CA 7576
StatusPublished
Cited by10 cases

This text of 564 P.2d 1372 (State v. Maddox) 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. Maddox, 564 P.2d 1372, 29 Or. App. 787, 1977 Ore. App. LEXIS 2445 (Or. Ct. App. 1977).

Opinion

*789 JOHNSON, J.

Defendant pled guilty to three charges of theft in the first degree. On two of the charges the trial court sentenced defendant to two five-year terms of imprisonment to run consecutively. On the third charge the trial court suspended imposition of sentence and placed defendant on five years’ probation to begin upon defendant’s release from physical custody for the first two charges. Defendant assigns as error the suspended imposition of sentence on the third charge.

The question presented is whether the trial court was authorized under ORS 137.010 to delay for potentially more than five years the commencement of probation. ORS 137.010(2) and (3) provide:

"When a person is convicted of an offense, if the court is of the opinion that it is in the best interests of the public as well as of the defendant, the court may suspend the imposition or execution of sentence for any period of not more than five years.
"If the court suspends the imposition or execution of sentence, the court may also place the defendant on probation for a definite or indefinite period of not less than one nor more than five years.”

The state contends that, because the trial court has the power to impose consecutive sentences, it also has the power to impose delayed probation regardless of the duration of the delay as long as probation is to run consecutive to another sentence. However, the analogy fails. In State v. Duncan, 15 Or App 101, 104-05, 514 P2d 1367 (1973), we stated within the context of ORS 137.550(2) and ORS 137.510, subsequently re-enacted as ORS 137.010, that:

«* * * rjr^g 0f probation and sentence are distinct. While a person is on probation he is under the supervision of a court in lieu of sentence. [Citing cases;] The authorization contained in ORS 137.550(2) to 'impose any sentence which originally could have been imposed’ refers to a term of imprisonment, and not to an additional period of probation. [Citing case.]”

*790 ORS 137.010(2) and (3) limit the court’s supervisory jurisdiction over defendant to a maximum of five years from the date of disposition.

Remanded for resentencing.

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Related

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840 P.2d 729 (Court of Appeals of Oregon, 1992)
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822 P.2d 726 (Court of Appeals of Oregon, 1991)
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716 P.2d 261 (Court of Appeals of Oregon, 1986)
State v. Mock
679 P.2d 330 (Court of Appeals of Oregon, 1984)
State v. Barnes
648 P.2d 1306 (Court of Appeals of Oregon, 1982)
State v. Lippert
632 P.2d 28 (Court of Appeals of Oregon, 1981)
State v. Callaghan
576 P.2d 14 (Court of Appeals of Oregon, 1978)
State v. Greene
568 P.2d 716 (Court of Appeals of Oregon, 1977)
State v. Brummell
566 P.2d 209 (Court of Appeals of Oregon, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
564 P.2d 1372, 29 Or. App. 787, 1977 Ore. App. LEXIS 2445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-maddox-orctapp-1977.