State v. Nunn

734 P.2d 1375, 84 Or. App. 642, 1987 Ore. App. LEXIS 3362

• Court: Court of Appeals of Oregon
• Decided: April 8, 1987
• Docket: 10-85-10648; CA A39998
• Status: Published

Opinion

ROSSMAN, J.

Defendant challenges the sentences which she received for manslaughter in the second degree and driving under the influence of intoxicants. We remand for resentencing.

Defendant was sentenced to ten years imprisonment on the manslaughter charge. The trial court suspended imposition of the sentence for DUII and placed her on probation for five years, conditioned on her serving one year in the county jail, consecutive to the time served for manslaughter. Contrary to defendant’s contention, we do not read the judgment as imposing probation consecutive to the prison term and thereby violating ORS 137.010. The sentencing order provides that the jail term which defendant is to serve as a condition of probation will run consecutively to the sentence imposed for manslaughter if she is released from custody on that charge before her period of probation expires. However, if the probationary period expires while she is imprisoned on the manslaughter charge, the probation will end; she will not be required to serve time in the county jail.

Nevertheless, we must remand for resentencing. ORS 137.540(2) (a) authorizes a trial court to order, as a condition of probation, that a defendant be confined to the county jail for the lesser of one year or one-half of the maximum period that could be imposed for the offense. DUII is a Class A misdemeanor, ORS 813.010 (former ORS 487.540), subject to a maximum one-year sentence. ORS 161.615(1). Accordingly, defendant can be required to serve no more than six months as a condition of probation.

We have considered defendant’s second assignment of error and hold that, under ORS 161.062(1), merger is not required.

Conviction affirmed; remanded for resentencing.