State v. Haines

ROSSMAN, J.

Defendant seeks reversal of an order revoking his probation and sentencing him to a term consecutive to time served on a later conviction.

In 1985, after defendant was convicted of theft in the first degree, the trial court imposed a five-year sentence with a two and one-half year minimum. The court suspended execution of the sentence and placed him on probation for five years. Later, he stipulated that he had violated the terms of his probation by committing a new crime, robbery in the second degree. The trial court revoked probation and imposed a new five-year sentence with a two and one-half year minimum, to run consecutively with the sentence for the robbery.

ORS 137.550(4) provides:

“The court that imposed the probation, after summary hearing, may revoke the probation and suspension of sentence and cause the sentence imposed to be executed or, if no sentence has been imposed, impose any sentence which originally could have been imposed.”

As the state concedes, after a court has imposed a sentence and placed a defendant on probation, it may revoke the probation but does not have authority under ORS 137.550(4) to amend the sentence. State v. Stevens, 253 Or 563, 565 , 456 P2d 494 (1969). If a trial court wishes to keep its options open regarding the penalty, it must postpone the imposition of sentence. ORS 137.550(4).

Accordingly, the sentence order is modified by deleting the provision that the sentence be served consecutively to the robbery sentence; affirmed as modified. 1

Defendant’s assignment of error challenging revocation of his probation is without merit.