- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 08-03-2016
- Case #: A153461
- Judge(s)/Court Below: Ortega, P.J. for the Court; Devore, J; & Garrett, J.
- Full Text Opinion
Over the past two decades, Defendant’s murder conviction has been remanded for resentencing several times. In this case, Defendant appealed a judgment imposing his most recent sentence, an upward departure of 600 months’ imprisonment and lifetime post-prison supervision. The sentencing court made its determination to depart from the presumptive sentence based solely on the aggravating factor of the murder weapon alone. However the record was unclear if the judge considered inappropriate factors for consideration which were not included in State’s notice to Defendant. On appeal, the Court held that in determining whether a factor warrants a substantial and compelling departure, aggravating factors that were not included in the State's notice to Defendant and that were not proved beyond a reasonable doubt before a jury may not be used by the sentencing court as a substantial and compelling reason to impose an upward departure sentence. Because the record was unclear about exactly what factors the judge relied on, the Court remanded the case for resentencing by the court based only on the aggravating factors presented to Defendant in the State’s notice. Reversed and remanded.