State v. Sellberg

PER CURIAM Defendant was convicted for driving under the influence of intoxicants, ORS 813.010, and driving while suspended, ORS 811.182, both class A misdemeanors. The state concedes that the judgment is erroneous in failing to impose separate sentences on the convictions. It also concedes that the sentence is ambiguous in imposing a 1-year jail term as a condition of probation, purportedly for both offenses. ORS 137.540(2)(a) limits the jail time that can be imposed as a condition of probation to one-half of the maximum sentence that could be imposed. Under ORS 161.615(1), the maximum sentence for a class A misdemeanor is 1 year but, under a 1989 enactment, that sentence (which would not be a condition of probation) is now limited to 6 months, unless the sentencing judge finds substantial and compelling reasons to impose a longer term. Or Laws 1989, ch 790, § 51 as amended by Or Laws 1991, ch 830, § 9.1 Defendant contends that, on remand, the maximum incarceration on his DWS conviction as a condition of probation would be one-half of that, or 3 months. The state’s position is that the court could impose a 6-month term, because ORS 137.540(2)(a) limits jail time to half the maximum sentence that could be imposed and, under section 51, the court could impose 1 year in jail for substantial and compelling reasons. However, no such findings were made. On remand, if the court imposes more than 3 months incarceration as a condition of probation on the DWS conviction, it must state what substantial and compelling reasons would have supported a term of incarceration longer than the 6 months allowed under section 51.2 Convictions affirmed; remanded for resentencing. Footnotes [1] Section 51 does not apply to convictions for driving under the influence of intoxicants. [2] We have already answered defendant’s second assignment of error contrary to his argument. State v. Oary, 112 Or App 296, 829 P2d 90 (1992).