State v. Flores

330                    July 30, 2025                No. 691

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                JOVAN RAYEL FLORES,
                  Defendant-Appellant.
                Polk County Circuit Court
                  21CR40473; A185324

  Norman R. Hill, Judge.
  Submitted June 13, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Chief Judge, and Egan, Judge.
  EGAN, J.
  Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)                           331

           EGAN, J.
         Defendant pleaded guilty to one count of failure
to perform the duties of a driver, ORS 811.705, and two
counts of fourth degree assault, ORS 163.160(2), a Class
A misdemeanor. The trial court imposed a sentence of 25
months’ prison with 24 months of post-prison supervision,
stating that defendant was not eligible for early release programs under ORS 137.750 for failure to perform the duties
of a driver, without announcing on the record substantial
and compelling reasons to do so. The trial court imposed a
one-year jail sentence for each of the misdemeanor assault
convictions, which exceeds the statutory maximum term
of incarceration for a Class A misdemeanor. The state concedes that the trial court erred. We agree with and accept
the state’s concessions. We remand for resentencing and
otherwise affirm. 1
         ORS 137.750(1) requires the trial court to order that
“defendant may be considered … for any form of temporary
leave from custody, reduction in sentence, work release or
program of conditional or supervised release authorized by
law … unless the court finds on the record in open court
substantial and compelling reasons that defendant not be
considered for such leave, release or program.” The trial
court legally erred when it denied eligibility for these programs for the first time in the judgment without making
the necessary findings. State v. Ivie, 

,

 (2007) (trial court erred in denying consideration for sentence modification programs without making
the findings required by ORS 137.750).
         “A sentence must be authorized by the governing
statute under which it is imposed.” State v. Davidson, 

, 

 (2022). The statutory maximum
jail term for a Class A misdemeanor under ORS 161.615(1)
is 364 days. Defendant pleaded guilty to two Class A misdemeanors. The court therefore plainly erred when it imposed
one-year sentences. We exercise our discretion to correct
the error, taking into account that the case is already being
remanded for resentencing, so there is minimal additional
   1
     As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel.
332                                             State v. Flores

burden on judicial resources, and that the state has conceded that the court plainly erred and has agreed that we
should correct it “especially in light of the fact that a resentencing is required because of the error in defendant’s first
assignment of error.”
        Remanded for resentencing; otherwise affirmed.