State v. Dizick

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Sentencing
  • Date Filed: 04-26-2017
  • Case #: A156745
  • Judge(s)/Court Below: Sercombe, P.J. for the Court; Tookey, J.; & DeHoog, J.
  • Full Text Opinion

Under ORS 138.083(1)(a), a trial court is not required to grant a defendant’s motion to modify an erroneous sentencing term, so long as it articulates a permissible reason for declining to do so. State v. Harding, 225 Or App 386, vac’d on other grounds, 347 Or 368 (2009)

Defendant appealed an amended judgment of conviction for two counts of attempted aggravated murder.  Defendant assigned error to the trial court's grant of state’s motion, filed under ORS 138.083(1)(a), to add presumptive sentences and grid block scores to Defendant’s judgment. The trial court rejected Defendant’s motion.  On appeal, Defendant raised the same argument, asserting the trial court abused its discretion in declining to modify the incorrect term. A trial court is not required to grant a defendant’s motion to modify an erroneous sentencing term under ORS 138.083(1)(a), so long as the court articulates a permissible reason for declining to do so. See State v. Harding, 225 Or App 386, vac’d on other grounds, 347 Or 368 (2009).  In this case, although on the record, had been omitted from the written judgment. Defendant moved to reconsider, arguing the presumptive sentence calculations were erroneous because the grid block scores on the record were legally incorrect.  The Court of Appeals concluded the trial court did not abuse its discretion because it held a hearing, heard argument from both parties, and offered appropriate reasons for denying Defendant’s motions by explaining that Defendant could have challenged the grid block scores on direct appeal at the time the judgment was entered.  Thus, the Court concluded the trial court did not err.  Affirmed.  

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