State v. Jones

832 P.2d 459 (1992) 113 Or. App. 228

STATE of Oregon, Respondent,
v.
David Andrew JONES, Appellant.

90C-20365; CA A68211.

Court of Appeals of Oregon.

Argued and Submitted February 28, 1992. Decided May 20, 1992.

Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and De MUNIZ, JJ.

PER CURIAM.

Defendant was found guilty of rape in the first degree, ORS 163.375, and rape in the second degree. ORS 163.365. He first argues that the 20-year sentence imposed under ORS 137.635 for the first-degree rape conviction exceeded the maximum permissible under the sentencing guidelines. For the reasons set out in State v. Haydon, 113 Or.App. 205, 832 P.2d 457 (decided this date), we agree.

Defendant also argues that the sentencing court erred in specifically denying him credit for time served. The state responds that he made no showing of the length of his pretrial incarceration or whether any of the pretrial detention was based solely on the pendency of these charges. ORS 137.370(2)(a).

ORS 137.320 provides that the Department of Corrections shall compute a defendant's sentence and give credit for presentence time served. It does not authorize the sentencing court to order credit for time served. Nissel v. Pearce, 307 Or. 102, 105, 764 P.2d 224 (1988); see State v. McClure, 295 Or. 732, 670 P.2d 1009 (1983); State v. Rudy, 43 Or.App. 635, 603 P.2d 1230 (1979). The guidelines did not change ORS 137.320. We agree that, by negative implication, sentencing courts have no authority to deny credit for time served to which a defendant is statutorily entitled. Insofar as the judgment purports to do so, it is invalid.

Convictions affirmed; judgment provision denying credit for time served vacated; sentence for rape in the first degree vacated; remanded for resentencing; otherwise affirmed.