Opinion
84-11-35092; CA A44898
Argued and submitted February 29, 1988
Affirmed as modified April 6, 1988
Appeal from Circuit Court, Multnomah County.
Stephen L. Gallagher, Judge.
Sally Avera, Deputy Public Defender, Salem, argued the cause for appellant. With her on the briefs was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
ROSSMAN, J.
Sentence order modified by deleting provision that sentence be served consecutively to robbery sentence; affirmed as modified.
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 P.2d 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.
Defendant's assignment of error challenging revocation of his probation is without merit.