State v. Bucholz
| Decision Date | 28 October 1992 |
| Citation | 113 Or.App. 705,834 P.2d 456 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Respondent, v. Robert Darrell BUCHOLZ, Appellant. 10 90 02791 & 10 90 03187, CA A65640 (Control) & CA A65641. |
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief, for appellant.
Harrison Latto, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.
Defendant was charged in one indictment with theft in the first degree, ORS 164.055, committed on February 10, 1990; in a separate indictment he was charged with unauthorized use of a motor vehicle, ORS 164.135, criminal mischief in the first degree, ORS 164.365, and unlawful delivery of a controlled substance to a minor, ORS 475.995, all committed on March 20, 1990. Defendant pled guilty to all of the charges in both indictments, and the charges were consolidated for sentencing. On the theft conviction, under the first indictment, the court sentenced him on the basis of a criminal history category in grid block G. It then used that conviction to elevate the criminal history category to F for purposes of sentencing on the conviction for unlawful delivery of a controlled substance under the second indictment. Defendant argues that the court erred.
Calculation of criminal history is governed by OAR 253-04-006. 1 Defendant argues that more than the oral pronouncement of sentence is needed to include a conviction in a criminal history. The state counters that the rule does not require a journal entry of conviction or a final judgment. Both parties point to the commentary to OAR 253-04-006 and policy arguments to support their positions. However, as discussed in State v. Seals, 113 Or.App. 700, 833 P.2d 1344 (decided this date), the legislative history demonstrates a legislative intent that convictions sentenced at the same time are present convictions that are not counted in the criminal history, irrespective of rules governing prior criminal history.
Defendant also argues that the court erred in imposing consecutive probation sentences under the guidelines on the convictions for criminal mischief and unauthorized use of a motor vehicle. 2 He contends that the court did not make the findings required by ORS 137.123(4) to impose consecutive sentences. State v. Racicot, 106 Or.App. 557, 809 P.2d 726 (1991). We agree with defendant that the enactment of the guidelines did not change that requirement.
CA A65640 remanded for resentencing; otherwise...
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...be included in a defendant's criminal history score. State v. Seals,113 Or.App. 700, 704, 833 P.2d 1344 (1992); State v. Bucholz,113 Or.App. 705, 707, 834 P.2d 456 (1992). That was true, under the Court of Appeals decisions in Sealsand Bucholz,regardless of whether the offenses being senten......
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...that are not counted in the criminal history, irrespective of rules governing prior criminal history." State v. Bucholz , 113 Or. App. 705, 707, 834 P.2d 456 (1992) (first emphasis added; second and third emphases in original).5 The legislative history on which the Court of Appeals relied i......
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