State v. McEahern
| Decision Date | 02 February 1994 |
| Citation | 867 P.2d 568,126 Or.App. 201 |
| Parties | STATE of Oregon, Respondent, v. Robert John McEAHERN, Appellant. 91-07-33488; CA A76891. |
| Court | Oregon Court of Appeals |
Steven V. Humber, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Kaye E. Sunderland, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
Before DEITS, P.J., RIGGS, J., and DURHAM, J. Pro Tem.
Defendant appeals his sentence, contending that the trial court erred by denying him credit for time served. We affirm.
Defendant pleaded guilty to criminal mischief in the first degree, ORS 164.365, and attempted theft in the second degree, ORS 164.045. 1 On the first charge, the trial court imposed the maximum dispositional departure sentence of six months imprisonment with one year post-prison supervision. OAR 253-08-005(1)(a); OAR 253-05-002(2)(a). The judgment specified that the prison time was imposed "with no credit for time served." The court suspended sentence on the second charge and placed defendant on five years probation. 2
The state concedes that the court did not have authority to deny defendant credit for time served. Nissel v. Pearce, 307 Or. 102, 105, 764 P.2d 224 (1988). Under ORS 137.320, 3 the Department of Corrections is given the authority to compute credit for time served. The state contends, however, that defendant did not preserve the error and that we should not exercise our discretion to reach it, ORAP 5.45(2), because defendant invited the error. The record shows that, after the court imposed the sentence, defendant's counsel requested that the court exercise its discretion to grant credit for time served. The court initially declined to do so on the ground that it lacked the authority. However, following defense counsel's insistence that "[t]he guidelines specifically say the Court has discretion," the court said that it would exercise its discretion and that it would not grant credit for time served.
We agree that defendant failed to preserve this error, and we decline to exercise our discretion to review it. State v. Farmer, 317 Or. 220, 224, 856 P.2d 623 (1993); State v. Castrejon, 317 Or. 202, 211, 856 P.2d 616 (1993); Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991). We express no opinion as to the effect on the department of the trial court's disposition of the request for credit for time served.
Affirmed.
1 Defendant's plea was not entered as part of a plea agreement; hence, ORS 138.222(2)(d) does not preclude our review. See State v. Adams, 315 Or. 359, 847 P.2d 397 (1993).
2 Defendant does not challenge the imposition of either sentence.
3 ORS 137.320 provides, in part:
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...supervision. We decline to exercise our discretion to reach an error that the state invited the court to make. See State v. McEahern, 126 Or.App. 201, 867 P.2d 568 (1994). Affirmed on appeal and on * Haselton, J., vice Durham, J.1 Where, as here, a defendant moved for judgment of acquittal ......
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