State v. Febuary

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Sentencing
  • Date Filed: 11-12-2015
  • Case #: A154662
  • Judge(s)/Court Below: Tookey, J. for the Court; Sercombe, P.J.; and Edmonds, S.J.
  • Full Text Opinion

The doctrine of "presumption of vindictiveness" only applies when a criminal defendant is resentenced to a longer or otherwise more severe total sentence.

Defendant convicted of five crimes, including first-degree sexual abuse (Count 1), and providing alcohol to a person under 21 years of age (Count 2). The trial court sentenced Defendant to 170 months in prison on all five charges, and 60 months’ probation for Count 2. Defendant appealed, pleading guilty to Counts 1 and 2 in exchange for dismissal of the other three charges. Upon resentencing, the trial court sentenced Defendant to 87 months in prison, including 12 months in prison on Count 2. Defendant appealed, claiming that the 12-month sentence denied his right to due process under the Fourteenth Amendment of the United States Constitution. Defendant argued the sentence was presumptively vindictive. The state contended that the presumption of vindictiveness did not apply to Defendant’s sentence, as his new sentence was shorter than the original one. The Court cited Partain, which held that the presumption of vindictiveness applies only where a defendant is resentenced to a longer or otherwise more severe total sentence. Here, Defendant’s newer sentence was shorter than the original; therefore, the presumption of vindictiveness did not apply. Judgment AFFIRMED.

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