State v. Peters

801 P.2d 904, 104 Or. App. 582, 1990 Ore. App. LEXIS 1683

• Court: Court of Appeals of Oregon
• Decided: December 12, 1990
• Docket: C89-01-30399, C89-01-30509, C89-01-30409, C89-01-30511 CA A62574 (Control), CA A62575, CA A62828, CA A62829
• Status: Published

Opinions

WARREN, P. J.

Defendant pleaded guilty to nine crimes. On July 18, 1989, the trial court orally sentenced defendant to four concurrent indeterminate terms, not to exceed ten years. At the state’s request, the court delayed entering a final judgment until after defendant had taken a polygraph examination. He was then transferred to Oregon State Penitentiary. Transport orders included his maximum term but no mention of a minimum term. The parties dispute whether the judge’s oral pronouncement included a minimum term.

Defendant moved for clarification of the sentence. Because he still had not taken a polygraph examination, no final judgment had been entered. At a hearing on July 25, the court stated that two of defendant’s terms included minimum terms of two and one-half years. Final judgments were then prepared and entered. Defendant appeals. He contends that the judge’s oral pronouncement did not include a minimum term and that, once the sentence had been imposed and he began to serve it, the sentencing court illegally modified his sentence in the written judgment. We affirm.

In criminal matters, appellate review is derived from and limited by statute. State v. Bateman, 95 Or App 456, 461, 771 P2d 314, rev den 308 Or 197 (1989). Defendant pleaded guilty, so his appeal is governed by ORS 138.050. That statute limits our review to whether the sentence imposed either exceeds the maximum allowed by law or is unconstitutionally cruel and unusual. ORS 138.050(1); State v. Blaney, 101 Or App 273, 276, 790 P2d 549 (1990). Because defendant does not make either claim, we may not, on direct appeal, review his assertion of error.

Affirmed.