State v. Berg

3 Citing cases

  1. State v. Allen

    A117220 (Control) and A117851 (Cases Consolidated) (Or. Ct. App. Nov. 16, 2005)

    The state argues on reconsideration that we were wrong to treat as "plain error" the imposition of a departure sentence based solely on defendant's being on supervision. In support of its argument that there was no plain error, the state relies on State v. Williams, 133 Or App 191, 891 P2d 3, rev den, 321 Or 512 (1995); State v. Nelson, 119 Or App 84, 849 P2d 1147 (1993), State v. Berg, 115 Or App 254, 838 P2d 73 (1992), rev den, 315 Or 312 (1993); and State v. Mitchell, 113 Or App 632, 833 P2d 1324 (1992). The state asserts that in none of those cases did this court suggest that the trial court was required to make an additional factual finding that prior supervision had failed to deter the defendant from committing further offenses. From that assertion, the state goes on to posit that "a defendant's supervision status, by itself, warrants a departure."

  2. State v. Allen

    202 Or. App. 565 (Or. Ct. App. 2005)   Cited 38 times
    In Allen, we discussed "the use of a departure sentence based on the defendant's supervision status under the rationale that the commission of a new crime demonstrated that supervision had not deterred the defendant."

    The state argues on reconsideration that we were wrong to treat as "plain error" the imposition of a departure sentence based solely on defendant's being on supervision. In support of its argument that there was no plain error, the state relies on State v. Williams, 133 Or App 191, 891 P2d 3, rev den, 321 Or 512 (1995); State v. Nelson, 119 Or App 84, 849 P2d 1147 (1993), State v. Berg, 115 Or App 254, 838 P2d 73 (1992), rev den, 315 Or 312 (1993); and State v. Mitchell, 113 Or App 632, 833 P2d 1324 (1992). The state asserts that in none of those cases did this court suggest that the trial court was required to make an additional factual finding that prior supervision had failed to deter the defendant from committing further offenses.

  3. State v. Williams

    133 Or. App. 191 (Or. Ct. App. 1994)   Cited 18 times

    Here, for example, defendant has assigned error to the trial court's finding as an aggravating factor that she committed the murder while on probation for six other crimes. She acknowledges that we have upheld departure sentences based on the offender's probation status, see, e.g., State v. Berg, 115 Or. App. 254, 838 P.2d 73 (1992), rev den 315 Or. 312 (1993), but distinguishes those cases because the defendants were on probation when the new crime was committed, and the new crime also had a probationary presumptive sentence. Defendant's contention is that those cases warranted dispositional departures, but here, where the presumptive sentence for murder is imprisonment, the factor does not support a durational departure.