Public-domain · open source
OpenJurist

39 Or. App. 901

594 P.2d 831

State v. DeChenne

Court of Appeals of Oregon

Decided April 30, 1979

Court of Appeals of Oregon · decided 1979-04-30

Key passage — most relied on by later courts

“[the principal requirement in imposing a consecutive sentence is that there be a sufficiently definite event for commencement of the consecutive sentence in order that the Corrections Division may implement that sentence. 6 } Id. T14 Conversely, the cireumstances presented to Judge Reese required him to make the concurrent/consecutive determination at the probation revocation hearing in which he sought to impose and execute the previously suspended sentence. 7 Defendant, while on probation, incurred intervening convictions of aggravated robbery. And, at the time of the probation revocation hearing, Defendant was serving his aggravated robbery sentences at the Utah State Prison. Thus, in executing the previously imposed sentence, Judge Reese was required by section 76-3-401(1)(b) to determine the manner in which the theft sentence was to be served relative to the aggravated robbery sentences. 8 As such, Judge Reese did not err in determining whether the sentences were to run concurrently or consecutively to one another. CONCLUSION T15 Section 76-3-401(1)(b) requires a court to decide whether the sentence for any felony offense(s) should be served concurrently or consecutively to another sentence being served at the time of the sentencing. See Utah Code Ann. § 76-8-401 (1)(b). Because the statute, under subsection (1)(b), requires such a determination only when a defendant is "already serving”

quoted by 2 later decisions, including State v. Anderson, State v. Anderson

Good law ✅— No negative treatment on recordhow we know

Decided 1979-04-30

How this case has been cited

Cited by 10 later decisions — most recently February 2009

10 state decisions

401979198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

*903 RICHARDSON, J.

¶1 Defendant appeals the sentence imposed following his conviction for Burglary in the First Degree. He contends the court had no authority to order the sentence to run consecutive to a sentence not yet executed in another case.

¶2 On February 15, 1978, the Clackamas County Circuit Court sentenced defendant to five years’ incarceration. Execution of the sentence was suspended and defendant was placed on probation. On June 22,1978, the Multnomah County Circuit Court sentenced defendant to eight years’ incarceration on another charge. The court ordered this sentence to run consecutive to the five year sentence in the Clackamas County case. On June 29,1978, the Clackamas County Circuit Court revoked defendant’s probation and ordered the five year sentence previously imposed to be executed. It also ordered the sentence to run concurrent with the sentence imposed by the Multnomah County Circuit Court.

¶3 During the sentencing hearing in Multnomah County, defendant’s counsel stated that defendant was awaiting a probation revocation hearing in Clackamas County. Defense counsel asked that the Multnomah County sentence be made concurrent with the Clackamas County sentence. The state asked that the sentence run consecutive to the Clackamas County sentence.

¶4 Defendant argues that the court has no authority to impose a sentence to run consecutive to a sentence which has, at that time, not been executed.

¶5 In reliance on State v. Jones, 250 Or 59, 440 P2d 371 (1968), we have recognized that trial courts have inherent power to impose concurrent or consecutive sentences. See State v. Penland and LeBrun, 6 Or App 255, 486 P2d 1314, rev den (1971); State v. Andrews, 2 Or App 595, 469 P2d 802, rev den (1970), cert den 406 US 973 (1972); State v. Brudos, 3 Or App 239, 471 P2d *904 861, rev den (1970); Trahan v. Cupp, 8 Or App 466, 493 P2d 1391, rev den, cert den 409 US 884 (1972).

¶6 A consecutive sentence, which is a sentence to begin in the future, by its nature commences when the first sentence is terminated. The principal requirement in imposing a consecutive sentence is that there be a sufficiently definite event for commencement of the consecutive sentence in order that the Corrections Division may implement that sentence. See Trahan v. Cupp, supra. Because the Multnomah County sentence was imposed prior to the execution of the Clackamas County sentence it would be calculated by the Corrections Division as the first sentence to commence. Consequently it would not commence after the termination of the Clackamas County sentence. That latter sentence, in turn, would run concurrent with the Multnomah Comity sentence. That is obviously not the intention of the Multnomah County Circuit Court. The court erred in ordering the sentence to run consecutive to the Clackamas County sentence. The case must be remanded for resentencing. Upon remand the Multnomah County Court may impose a sentence to run concurrent with or consecutive to the executed Clackamas County sentence.

¶7 Reversed and remanded for resentencing.

/39/orapp/901 · .json · Public domain