State v. Gilbert

When a sentencing court does not make an oral or written ruling that a sentence will be served consecutively with another sentence, ORS 137.123(1) requires that the sentences run concurrently, and the reference in ORS 138.083(1)(a) to amending an “erroneous term” cannot be employed by the sentencing court to amend the sentence due to an unexpressed intention at the time of the original judgment for the sentences to run consecutively.

Defendant appeals an October 2009 judgment whereby the sentencing court amended a July 2007 judgment that made his sentences on his previous conviction for similar burglary convictions consecutive to the sentences that he was due to complete in October 2009. ORS 137.123(1) requires that in the absence of specific direction of the sentencing court, “[a] sentence shall be deemed to be a concurrent term unless the judgment expressly provides for consecutive sentences.” Because the sentencing court did not express an intention, orally or in writing, for the defendant’s earlier sentences to run consecutively with the later ones, the Court of Appeals held that the “erroneous term” provision in ORS 138.083(1)(a) was inapplicable to the situation and the sentencing court had no power to amend the earlier sentence. Reversed and remanded with instructions to reinstate the July 2007 judgment.