State v. Wash

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

• Court: Court of Appeals of Oregon
• Decided: April 2, 1979
• Docket: No. C 78-04-06853, CA 11769
• Status: Published

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.

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.