State v. Wash

592 P.2d 1035, 39 Or. App. 447, 1979 Ore. App. LEXIS 2156

Opinion

SCHWAB, C. J.

Defendant, having been convicted of burglary in the first degree, makes four assignments of error, only one of which warrants discussion: the failure of the sentencing court to order a presentence report dealing with the offense for which defendant was convicted.

At the time of the sentencing hearing on July 13, 1978, the trial court apparently had before it a presentence report obtained following defendant’s forgery conviction on April 7, 1978. The report is dated May 10, 1978. ORS 144.790(1) provides:

"Whenever any person is convicted of a felony, the Corrections Division shall furnish a presentence report to the sentencing court. If a presentence report has previously been prepared by the Corrections Division with respect to the defendant, the division shall furnish a copy of that report, and supplement bringing it up to date, to the sentencing court. The reports shall contain recommendations with respect to the sentencing of the defendant * * (Emphasis supplied.)

Apparently all that was necessary to make the report adequate under the statute would have been a brief supplement containing nothing more than a sentencing recommendation. However, such a supplement was not provided. The petitioner’s contention that the report was statutorily insufficient because the trial judge was " * * * without the recommendations of the Corrections Division personnel for this particular offense” is correct.¹

Reversed and remanded for resentencing.

Footnotes

1

In State v. Corrick, 38 Or App 247, 589 P2d 1186 (1979), there is dicta erroneously implying that a report submitted in connection with another crime is sufficient even if it is not updated by a sentencing recommendation covering the crime for which a defendant is being sentenced.