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State v. Lewis

Summarized by: 

Date Filed: 07-24-2013
Case #: A148650
Duncan, J. for the Court; Schuman, P.J.; and Wollheim, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A148650.pdf

Sentencing: Per OAR 213-012-0040(2), when a defendant is serving multiple terms of probationary supervision and commits one probation violation, the court can revoke and impose only concurrent sentences and not consecutive sentences.

Defendant appealed a judgment for revocation of probation in cases 09P50711 and 10P3043, but raised only a single assignment of error in 10P3043. The Court only addressed case number 10P3043. In that case, Defendant was convicted of three felony drug offenses (Counts 1, 2, and 4) and one misdemeanor drug offense. The Court imposed a downward dispositional sentence of 5 years' supervised probation. Defendant later violated his probation by using marijuana. Upon revocation, the Court imposed 24 months of prison for Count 1, 23 months of prison for Count 2 to run consecutive to Count 1, and 25 months of prison for Count 4 to be served concurrent to Count 1. On appeal, Defendant argued that the Court cannot impose consecutive sentences for one probation violation. The State argued that the plea offer stipulated that Defendant agreed to consecutive sentences upon violation and that State v. Miller should apply in this case. The Court dismissed both arguments. The plea offer stated that the State may seek consecutive sentences, but not that Defendant agreed to it. Furthermore, the rule in State v. Miller applies to initial sentencing instead of revocation of probation when there is a probation violation. Case number 09P50711 affirmed; 10P3043 reversed and remanded.