State v. McClure
| Decision Date | 18 October 1983 |
| Docket Number | CA,Nos. TC,C-2 and 82-0020-C-2,s. TC |
| Citation | 670 P.2d 1009,295 Or. 732 |
| Parties | STATE of Oregon, Respondent on Review, v. Charles Frederick McCLURE, Petitioner on Review. 82-0019-A25288 and A25314, SC 29620. |
| Court | Oregon Supreme Court |
Raymond R. Smith, Medford, argued the cause and filed the petition for review for petitioner. Gary H. Petersen, Ashland, filed the brief for petitioner.
Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.
The sole issue in this case is whether time spent in a county jail between a person's arrest and trial must be credited against county jail confinement time ordered as a condition of probation. We hold that our statutes do not require this.
Defendant McClure was arrested on December 25, 1981 for resisting arrest and assaulting a police officer. He was confined 49 days in the county jail before he was released on his own recognizance February 11, 1982. Following his trial, the jury found him guilty of both charges.
The trial judge pronounced sentence as follows
The trial court did not give defendant credit for the 49 days he was confined in the county jail before the trial. 1 The defendant failed to claim during the hearing that he was entitled to this credit. 2 The Court of Appeals affirmed without opinion. State v. McClure, 62 Or.App. 663, 662 P.2d 813 (1983).
Defendant now contends that the trial court lacked authority to deny him credit for the time he had already served. Defendant cites ORS 137.320(4), which requires that imprisonment after arrest be credited towards the term of a sentence in a county jail:
Defendant also relies on ORS 137.390:
"The commencement, term and termination of a sentence of imprisonment in the county jail is to be ascertained by the rule prescribed in ORS 137.370 * * *."
The pertinent part of ORS 137.370 reads:
If defendant had actually received a sentence of imprisonment, either in a county jail or in the custody of the Corrections Division, the statutes make it clear that his post-arrest imprisonment time, or "back time," must be credited to his sentence. In the present case, however, the judge suspended the imposition of defendant's sentence and placed him on probation for two years. As part of his probation, the orders require defendant to spend 90 days in the county jail, as authorized by ORS 137.540(2)(a):
This statute does not require that "back time" be credited.
Defendant's basic position is that the statutes quoted above require that he be given credit for the time he was already confined. He also makes constitutional arguments (although without citing any constitutional provisions) that to fail to give this credit would be a violation of equal protection and could result in a person being confined beyond the statutory maximum, 3 evidently in violation of the guarantee against disproportionate sentences.
The state answers by arguing that probation is not the imposition of a sentence, relying on State ex rel. Dillavou v. Foster, 273 Or. 319, 322, 541 P.2d 811 (1975). To further support its position, it contends that the statutory scheme contained in Chapter 137 of the Oregon Laws clearly separates the "imposition of a sentence" from a grant of probation. We agree. Probation is an alternative to the imposition of a sentence. ORS 137.010. This defendant has not received a sentence of imprisonment, and the statutes mandating credit for pretrial confinement do not apply. The statutes requiring mandatory credit for time served...
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