State v. Commedore
| Decision Date | 04 November 1964 |
| Citation | 239 Or. 82,396 P.2d 216 |
| Parties | STATE of Oregon, Respondent, v. William COMMEDORE, Appellant. |
| Court | Oregon Supreme Court |
Millard M. Becker, Portland, argued the cause for appellant. With him on the brief were Groce, Becker & Ellis, Portland.
Vincent G. Ierulli, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.
Before McALLISTER, C. J., and PERRY, O'CONNELL and DENECKE, JJ.
The defendant, William Commedore, plead guilty in Multonomah county to an indictment charging him with the crime of burglary not in a dwelling, and on April 4, 1963 was sentenced to a term in the penitentiary not exceeding five years. Thereafter, on April 10, 1963, the district attorney filed an information charging that the defendant had committed four prior felonies and asking the court to vacate the five-year sentence, and to impose an enhanced penalty pursuant to the habitual criminal act, ORS 168.015 to 168.085. The defendant stood mute to the information alleging his four prior convictions, and a hearing was held. The court found 1 that the defendant had been convicted of three of the four prior felonies listed in the information. The court then vacated the original five-year sentence and imposed a sentence of imprisonment in the penitentiary for a term not exceeding 19 years, from which enhanced penalty the defendant appeals.
On appeal defendant contends that one of the former convictions was not the conviction of a felony, but of a misdemeanor. At the enhanced penalty hearing the state offered a certified copy of the judgment of the circuit court for Multnomah county entered on November 27, 1956, from which it appears that defendant was convicted upon his plea of guilty of the crime of burglary not in a dwelling and was sentenced to imprisonment in the Multnomah county jail for a period of one year. Defendant contends that because he was not sentenced to a term in the penitentiary this former conviction was of a misdemeanor, and relies on ORS 161.030. 2
In 1956 the only penalty provided by law as punishment for the crime of burglary not in a dwelling was 'imprisonment in the penitentiary for not more than five years.' ORS 164.240. 3 Because the trial judge who imposed the sentence in that case, for some inexplicable reason, ignored the plain provisions of the statute and sentenced defendant to a term in the county jail instead of a term in the penitentiary, his sentence did not change the crime from a felony to a misdemeanor. In Rightnour v. Gladden, 219 Or. 342, 347 P.2d 103 (1959) it is pointed out in an opinion by Redding, J., that a sentence must conform to the statute authorizing it.
The defendant relies on In re Enright, 160 Or. 313, 85 P.2d 359 (1938). In that case Enright, an attorney, had been twice convicted of driving a motor vehicle while under the influence of intoxicating liquor in violation of § 24-503, OCLA. That section provided that a person convicted of a second violation thereof 'shall be deemed guilty of a felony and, upon conviction thereof, shall be imprisoned in the state penitentiary for not less than one year nor more than five years, and shall be fined not less than $200 nor more than $500.' The Board of Governors of the Oregon State Bar argued that Enright's second violation constituted a felony and that he should be disbarred. In response to that contention this court said:
'We are unable to agree with the Board of Governors that the nature of the crime, that is, whether a felony or misdemeanor, should be determined by the nature of the punishment which the court is authorized to impose and not that actually inflicted by the court.' In re Enright, 160 Or. at 316, 85 P.2d at 360.
We think the quoted statement is not...
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State v. Cartwright
...within a statute enhancing a penalty for a second or subsequent offense. In this connection we call attention to State v. Commedore, 239 Or. 82, 396 P.2d 216, where we held that, notwithstanding the sentence imposed upon the defendant in a prior case was void, the enhanced penalty authorize......
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Oliver, Matter of, 784
...criminal offense would serve as a basis for discipline. In re Enright (1938), 160 Or. 313, 85 P.2d 359, rev. on other grounds 239 Or. 82, 396 P.2d 216 (1964) (any misdemeanor or felony conviction a basis for discipline); Matter of Costigan (1972), 39 App.Div.2d 961, 333 N.Y.S.2d 984 (suspen......
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State v. Anderson
...a crime which is punishable by imprisonment in the penitentiary of this state * * *,' his conviction was for a felony. State v. Commedore, 239 Or. 82, 396 P.2d 216 (1964). Defendant next assigns as error the trial court's refusal to admit into evidence hearsay statements allegedly made by a......
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State v. Leathers
...lack of authority and thus totally without legal effect. State v. Cotton, 240 Or. 252, 254, 400 P.2d 1022 (1965); State v. Commedore, 239 Or. 82, 85, 396 P.2d 216 (1964); Rightnour v. Gladden, 219 Or. 342, 347 P.2d 103 (1959). When the trial court discovered its error, it had the duty to ta......