State v. Banks

If a defendant does not preserve an error of law at the trial court, the appellate court may exercise its discretion in correcting the error.

Defendant’s probation was extended to six years from the date of initial sentencing. He argued that, pursuant to ORS 137.010, five years was the maximum probationary period. He did not preserve this error at the trial court. The state argued that defendant made a strategic decision to not preserve the error, because it allowed him more time to pay his compensatory fines. Under ORS 137.010(4), a court may order a probationary period of up to six years upon a finding that probation has been violated for a felony. Defendant argued that he was sentenced for a misdemeanor, rather than a felony. The Court must decide whether to exercise its discretionary authority and correct the error as a plain error apparent on the face of the record, since defendant did not preserve this error. The Court agreed with the state that defendant may have declined to preserve the error for strategic purposes and thus would not exercise its discretion to correct the error. Affirmed.