State v. Actkinson

A person is not eligible for a downward departure sentence if they were on parole, probation, or post-prison supervision for a crime as listed in ORS 137.717(1)–including first degree theft–at the time of committing the crime at issue. ORS 137.717(6)(a).

Defendant appealed a judgment of conviction of the unauthorized use of a motor vehicle. On appeal, Defendant argued that the trial court erred when it concluded that ORS 137.717(6)(a) disqualified the defendant from downward departure sentencing because the statute referred to first degree theft as a felony, not when sentenced as a misdemeanor.  The State argued that even if Defendant was qualified to receive a downward departure sentence, there is judicial discretion to impose the presumptive sentence based on Defendant's extensive record. A person is not eligible for a downward departure sentence if they were on parole, probation, or post-prison supervision for a crime as listed in ORS 137.717(1)–including first degree theft–at the time of committing the crime at issue. ORS 137.717(6)(a).  The Court reasoned that the violation of trust by committing a crime while supervised was a significant factor, and not whether the crime was sentenced as a misdemeanor or felony, disqualifying Defendant from a downward departure sentence.  Accordingly, the judgment was affirmed.