State v. Green
| Decision Date | 02 May 1977 |
| Parties | STATE of Oregon, Respondent, v. Lowell Dean GREEN, Appellant. |
| Court | Oregon Court of Appeals |
Robert H. Anderson, Roseburg, argued the cause for appellant. With him on the brief was Murphy, Anderson & Cegavske, Roseburg.
Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LEE and RICHARDSON, JJ.
The defendant was convicted in 1967 of 'entering motor vehicle with intent to steal.' 1 Imposition of sentence was suspended and he was placed on three years' probation. Subsequently, in December 1970, his probation was revoked and he was sentenced to three years' imprisonment. In July 1976 he filed a motion to have his conviction set aside pursuant to ORS 137.225; popularly known as the 'expunction statute.' The motion was denied.
ORS 137.225 provides in part:
'(1) Every defendant convicted of (certain specified crimes) * * * at any time after the lapse of three years from the date of pronouncement of judgment, if he has fully complied with and performed the sentence of the court, and is not under charge of commission of any crime, may move the court wherein such conviction was entered for an entry of an order setting aside such conviction. * * *'
Defendant contends the trial court misconstrued the terms 'judgment' and 'sentence' in the statute to mean the date he was initially placed on probation. He argues sentence means a judgment of imprisonment and does not include an order of probation. From this he concludes since he fully complied with the sentence of the court, i.e., served out his imprisonment, he is entitled to expunction of his conviction without regard to his unsuccessful probation.
A motion to set aside a conviction under ORS 137.225 must meet essentially five conditions: (1) the crime for which defendant was convicted is one which can be set aside under the statute; (2) three years have elapsed since pronouncement of judgment; (3) the defendant has fully complied with and performed the sentence of the court; (4) he is not under charge of commission of any crime; and (5):
'* * * the court determines that the circumstances and behavior of the applicant from the date of conviction to the date of the hearing on the motion warrant setting aside the conviction * * *.' ORS 137.225(1).
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State v. Branam
...probation was not a sentence. See, e.g., State v. Anderson, 113 Or.App. 416, 418, 833 P.2d 321 (1992). 2. In State v. Green, 29 Or.App. 337, 563 P.2d 756 (1977), after the defendant was convicted of an offense, the trial court suspended the imposition of sentence and placed him on probation......
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State v. Langan
...the circuit court's task under ORS 137.225 as an exercise of "discretion," a term used by the Court of Appeals in State v. Green, 29 Or.App. 337, 340, 563 P.2d 756 (1977). The state's brief contends that "[g]ranting of expunction is entirely discretionary with the court." The description wo......
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State v. Bomar
...7, 718 P.2d 723. A trial court may only apply the criteria set forth in the statute. We addressed ORS 137.225 in State v. Green, 29 Or.App. 337, 339-40, 563 P.2d 756 (1977), and stated that a defendant must meet five requirements in order to have a conviction set "A motion to set aside a co......