State v. Smith
| Decision Date | 27 June 1996 |
| Parties | STATE of Oregon, Respondent on Review, v. Ross Sterling SMITH, Petitioner on Review. CC 91-930-CR, 91-931-CR, 91-932-CR; CA A82945 (Control), A82946, A82947; SC S42346. |
| Court | Oregon Supreme Court |
Wayne Mackeson, Portland, argued the cause and filed the brief for petitioner on review.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Before CARSON, C.J., and GILLETTE, FADELEY, UNIS, GRABER and DURHAM, JJ. **
In these three criminal cases, consolidated for the purposes of appeal, defendant was convicted of the following sexual offenses: Rape I, Sodomy I, and Attempted Sexual Abuse II (case 91-930-CR); Attempted Sexual Abuse I and Sexual Abuse II (case 91-931-CR); and Attempted Sexual Abuse II and three counts of Sexual Abuse II (case 91-932-CR). He initially was sentenced consecutively on the Rape I and Sodomy I counts in 91-930-CR, but concurrently on the remaining misdemeanor counts in all three cases. On appeal, the state conceded that the trial court had made errors in several of the sentences. The Court of Appeals affirmed all the convictions, affirmed petitioner's three sentences for Sexual Abuse II in 91-932-CR, and otherwise remanded all three cases for resentencing. State v. Smith, 116 Or.App. 558, 842 P.2d 805 (1992), adhered to 120 Or.App. 438, 852 P.2d 934 (1993). The issues in the present proceeding arise out of the sentencing court's disposition of the cases on remand.
On remand, the sentencing court reduced the length of each sentence, but imposed them consecutively (even though all but the Rape I and Sodomy I convictions previously had been applied concurrently). Considering the nature of the consecutive and concurrent sentences, petitioner originally had been sentenced to a total of 120 months. On resentencing, defendant concedes that the total was 102 months. On a second appeal to the Court of Appeals, that court affirmed without opinion. State v. Smith, 133 Or.App. 260, 890 P.2d 456 (1995).
Petitioner requested, and this court allowed, review with respect to two issues:
1) Whether the sentencing court exceeded its legal authority when, at resentencing, it imposed consecutive sentences on the misdemeanor convictions after previously having imposed concurrent sentences on the same convictions.
2) Whether the sentencing court exceeded its legal authority when, at resentencing, it imposed a 20-year term of post-prison supervision on the Rape I and Sodomy I convictions, after previously having imposed a 36-month term of post-prison supervision.
The first issue pertains to all three cases. The second issue pertains only to case 91-930-CR.
At oral argument, the parties presented this court with a joint motion for remand of 91-930-CR. The court specifically asked the parties whether they were asking that all three cases be remanded. The parties agreed that the request affected only 91-930-CR with regard to the second issue 1 and that the other two cases would remain with the court for resolution of the first issue. The parties later filed a joint motion, pursuant to ORS 138.227, 2 asking this court to remand 91-930-CR--the only case involving a felony conviction--for entry of a corrected judgment on the second issue. We allow that motion, and include that disposition with our resolution of this case. We thus are left to resolve the first issue, viz., whether the sentencing court exceeded its legal authority when it imposed consecutive misdemeanor sentences in these three cases.
Petitioner argues that the sentencing court lacked the authority to alter the misdemeanor sentences previously imposed in the three cases because, at the time of resentencing, petitioner already had served those sentences. This argument is well taken.
Petitioner began serving the concurrent misdemeanor sentences on October 7, 1991. The longest of them was 18 months, and they all were to be served concurrently with those imposed for the felony rape and sodomy convictions. Petitioner was resentenced on January 12, 1994, long after he had served 3 the original 18-month concurrent sentences....
To continue reading
Request your trial
-
State v. Sierra, CC 05C40355
...unknown to the first court at the time of the original sentencing. Defendant also contended that the common-law rule of State v. Smith , 323 Or. 450, 918 P.2d 824 (1996), prevented the sentencing court from imposing new sentences on any of the UUW convictions because defendant had fully ser......
-
State v. Sierra
...longer than the sentence previously imposed? (4) If ORS 138.222 or the law-of-the-case doctrine do not bar review, does State v. Smith, 323 Or. 450, 918 P.2d 824 (1996), prohibit the modification of defendant's sentences on the UUW convictions for which defendant had completed the previousl......
-
State v. Partain
...that ORS 138.222(5)(a) was enacted in response to our opinion in State v. Smith, 116 Or.App. 558, 842 P.2d 805 (1992), rev'd, 323 Or. 450, 918 P.2d 824 (1996). That case did not involve the question whether the trial court could, on remand, impose a greater sentence, so its role in the enac......
-
State v. Bisby, 0004-33599.
...sentence had been fully served. As we explain below, his argument is correct.2 Defendant relies primarily on State v. Smith, 323 Or. 450, 918 P.2d 824 (1996) (Smith II). In that case, the defendant was convicted of nine offenses. On appeal, this court concluded that six of the nine sentence......