State v. Alexander

An offer by the State to Defendant that it "might" impose an upward durational departure beyond the statutory maximum sentence, without mention of the specific enhancement fact, did not satisfy the notice requirements in ORS 136.765(2).

Defendant appeals his sentence for second-degree burglary, alleging that the trial court erred in imposing an upward durational departure sentence. For a trial court to impose an upward durational departure beyond the statutory maximum sentence, ORS 136.765(2) requires the state to provide, within a reasonable time, “written notice to the defendant of the enhancement fact and the state’s intention to rely on it.” In the present case, the state only informed Defendant that it “might” seek a departure sentence, but it did not specify any enhancement factor on which it may rely. Regardless, the trial court found that the state had provided sufficient notice, and Defendant pled no contest. On appeal, the Court agreed with Defendant and held that the state, in failing to specify which enhancement factor it would rely on, provided no notice at all. Reversed and remanded for resentencing.