State v. Larsen

CAMPBELL, J.

The defendant has appealed from an order revoking his probation and imposing a one-year sentence in the Multnomah County jail. We affirm.

In April 1978, the defendant entered a plea of guilty to escape in the second degree, a Class C felony. The trial court reduced the offense to a Class A misdemeanor, suspended the imposition of sentence and placed the defendant on three years’ probation. One of the conditions of probation was "that the defendant violate no laws.”

In December 1978, the defendant was convicted of felony driving while suspended. The sentencing court on the escape conviction ordered the defendant to appear and show cause why his probation should not be revoked.

In February 1979, the defendant’s probation was revoked and he was sentenced to six months in the county jail. The defendant protested the sentence saying, among other things, "I don’t need jail.” He refused to sign a form acknowledging that his rights to appeal had been explained to him. Defendant interrupted the trial judge’s explanation of defendant’s appeal rights. The court cautioned the defendant to be quiet or he would end up being sentenced for contempt.

After further colloquy the court said:

"Mr. Larsen, we are not through with the sentencing yet. The record should indicate that Mr. Larsen just further demonstrated his childishness by kicking over a chair. In view of your conduct, Mr. Larsen, I am satisfied I made a mistake in sentencing. I’ll vacate that order and sentence you to a year in the county jail.”

Defendant first contends that the order imposing sentence must be reversed because the sentencing court failed to comply with ORS 137.120(2)¹ by failing to state the reasons for the sentence. Although defendant’s escape in the second degree is a Class C felony, ORS 162.155, the sentencing court declared the offense a Class A misdemeanor, entered it as such on the Judgment and Probation Order, and suspended sentence in favor of probation. When defendant’s probation was ordered revoked and sentence imposed, the sentence was for a misdemeanor. ORS 137.120(2) does not apply to misdemeanors. Therefore the absence of a statement of reasons is not error.

Defendant also requests that we review the one-year sentence under ORS 138.050 to determine whether it is "excessive in light of the nature and background of the offender or the facts and circumstances of the offense.” State v. Dinkel, 34 Or App 375, 385, 579 P2d 245 (1978); ORS 138.050. Under State v. Dinkel, 34 Or App at 388, we will intervene in the sentencing decision only "when we find that a sentence imposed by a trial court is * * * 'clearly mistaken’ * * * or a 'clear abuse of discretion.’ ” (Citations omitted.)

Next we address the contention that the trial court erred in vacating the six-month sentence and imposing a one-year sentence. The defendant’s contention is answered by State v. Nelson, 246 Or 321, 324, 424 P2d 223, 225, cert denied, 389 US 964, 88 S Ct 340, 19 L Ed 2d 379 (1967), wherein the court said:

"The sole question presented by this appeal is whether the trial court may, after having orally pronounced his sentence, change that sentence.

"Subject to exceptions not here pertinent, it is the rule in this state that the trial court may not revise its judgment and increase the sentence even during the term at which it was pronounced if 'the judgment has gone into effect by commitment of the defendant under it, * * *.’ State v. Ludwig, 218 Or 483, 492, 344 P2d 764, 768 State v. Cannon, 11 Or 312, 314, 2 P 191.

"It is clear in this case that the execution of the judgment had not commenced at the time the trial court revised its judgment.”

It is also clear in this case that the execution of the six-month sentence had not commenced at the time the trial court revised it to one year.

See also State ex rel Gladden v. Kelly, 213 Or 197, 199-200, 324 P2d 486 (1958); State v. Highland, 28 Or App 251, 558 P2d 1298 (1977); State v. Olson, 22 Or App 344, 539 P2d 166 (1975).

Affirmed.

1 ORS 137.120(2) provides:

"Whenever any person is convicted of a felony, the court shall, unless it imposes other than a sentence to serve a term of imprisonment in the custody of the Corrections Division, sentence such person to imprisonment for an indeterminate period of time, but stating and fixing in the judgment and sentence a maximum term for the crime, which shall not exceed the maximum term of imprisonment provided by law therefor; and judgment shall be given accordingly. Such a sentence shall be known as an indeterminate sentence. The court shall state on the record the reasons for the sentence imposed. ” (Emphasis supplied.)