531 P.2d 901 (Or. 1975), State v. Leathers

Citation:531 P.2d 901, 271 Or. 236
Opinion Judge:HOLMAN, J.
Party Name:STATE of Oregon, Respondent, v. Charles Carl LEATHERS, Petitioner.
Attorney:Richard S. Mannis, Portland, argued the cause and filed the briefs for petitioner. John W. Burgess, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and W. Michael Gillette, Solicitor General, Salem.
Case Date:February 13, 1975
Court:Supreme Court of Oregon
 
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Page 901

531 P.2d 901 (Or. 1975)

271 Or. 236

STATE of Oregon, Respondent,

v.

Charles Carl LEATHERS, Petitioner.

Supreme Court of Oregon.

February 13, 1975

Argued and Submitted Jan. 6, 1975.

Page 902

[271 Or. 237] Richard S. Mannis, Portland, argued the cause and filed the briefs for petitioner.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, TONGUE and BRYSON, JJ.

[271 Or. 238] HOLMAN, Justice.

Defendant was convicted in Harney County of the crime of assault, a misdemeanor. He was sentenced to 60 days in the Multnomah County jail, to be served on weekends, and a $1,000 fine was imposed plus costs. The trial court sentenced him to serve his incarceration in Multnomah County because defendant was a resident of that county and operated a business there. The court was concerned that defendant's business would suffer unduly if defendant was incarcerated 60 consecutive days and, even if the sentence was served on weekends in Harney County, it would still suffer because defendant would use Mondays and Fridays traveling the 300 miles between Harney and Multnomah counties.

Following the commencement of the sentence, the district attorney filed a motion to set it aside, contending the trial court was without authority to order defendant's confinement in any county other than Harney. The court reconsidered its sentence and decided it had exceeded its authority and ordered defendant to serve the balance of his sentence in Harney County. Defendant appealed from the order changing the place of confinement. The Court of Appeals affirmed the corrected sentence, 99 Adv.Sh. 954, 525 P.2d 63 (1974), and this court granted review.

ORS 137.140 specifies the circumstances in which a defendant can be sentenced to confinement in a county other than that of his conviction. It was amended by the 1973 legislative session, Oregon Laws 1973, ch. 836, § 263, as part of the new Oregon Criminal Procedure Code which went into effect January 1, 1974. Defendant's initial sentence was imposed October 31, 1973, and the subsequent corrected sentence [271 Or. 239] was imposed in November 1973. The Court of Appeals mistakenly applied the Amended statute which did not go into effect until January 1, 1974, Oregon Laws 1973, ch. 836, § 359, in deciding whether the trial court exceeded its authority. In so doing, it also misconstrued the amended statute and, having made two errors, it nonetheless came out with the right answer. At the time of sentence the statute read:

'Whenever it appears to the court, at the time of giving judgment of imprisonment in the county jail, that there is no sufficient jail in the proper county, as provided in ORS 137.330, suitable for the safe confinement of the defendant, the court may order the judgment to be executed in the jail of any county in the state.'

Under this version of ORS 137.140 the only consideration in a determination of...

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