State v. Wight
This text of 759 P.2d 331 (State v. Wight) 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.
Opinion
Defendant appeals his convictions for murder, being an ex-convict in possession of a firearm and possession of a controlled substance. The trial court imposed, among others, 10- and 15-year consecutive minimum sentences on the murder conviction under ORS 163.115(3)(b) and (c), respectively, and a five-year minimum sentence on each conviction under ORS 161.610. We vacate the minimum sentences imposed under ORS 161.610, remand for resentencing and otherwise affirm.
In his second assignment of error,1 defendant contends that the trial court erred in denying his motion for judgment of acquittal on the charge of possession of a controlled substance. The evidence, if believed, was sufficient for a jury to find defendant guilty beyond a reasonable doubt. State v. Krummacher, 269 Or 125, 138, 523 P2d 1009 (1974).
In his third assignment, defendant contends that the trial court erred in imposing more than one minimum sentence under ORS 161.610, which allows an enhanced penalty for using a firearm in the commission of a felony. We accept the state’s concession that the trial court erred. State v. Hardesty, 298 Or 616, 695 P2d 569 (1985); State v. Mackey, 86 Or App 691, 695, 740 P2d 231, rev den 304 Or 279 (1987). On this record, we cannot determine whether the trial court would have ordered the minimum sentence under ORS 161.610 to be served concurrently or consecutively to the minimum sentences imposed on the murder conviction under ORS 163.115(3)(b) and (c).2 We therefore vacate the three minimum sentences imposed under ORS 161.610 and remand for resentencing.
In his fourth assignment, defendant contends that the trial court erred in imposing the 15-year minimum sentence under ORS 163.115(3)(c),3 which grants authority to the [641]*641sentencing court to impose a minimum term of up to 15 years “in addition to” the 10-year minimum mandated by ORS 163.115(3)(b). The only reasonable construction of subsection (c) is that the legislature intended to provide sentencing courts with the power to extend the minimum term an additional 15 years beyond the mandatory minimum required by subsection (b). It is well settled that a sentence within the statutory limits is valid, unless the sentencing court abused its discretion in imposing the sentence. See State v. Walley, 1 Or App 189, 192, 460 P2d 370 (1969); see also State v. Acklin, 83 Or App 246, 249, 730 P2d 1288 (1986). Here, the trial court imposed a sentence within the statutory limits, and defendant does not contend that it was an abuse of discretion. There was no error.4
Minimum sentences imposed under ORS 161.610 vacated; remanded for resentencing; and otherwise affirmed.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
759 P.2d 331, 92 Or. App. 638, 1988 Ore. App. LEXIS 1501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wight-orctapp-1988.