State v. Preston-Mittasch

Under ORS 137.545 (5)(a), the court may revoke probation and either (A) impose the suspended sentence, or (B), “[i]f no other sentence has been imposed,” impose any other sentence that originally could have been imposed.

Defendant was convicted for menacing under ORS 163.190 and sentenced to a 30-day jail term after his probation was revoked. He assigns error to the judgment revoking his probation, arguing that the trial court exceeded its authority under ORS 137.545(5)(a) because it had imposed a jail term as a special condition of probation. Under ORS 137.545 (5)(a), the court may revoke probation and either (A) impose the suspended sentence, or (B), “[i]f no other sentence has been imposed,” impose any other sentence that originally could have been imposed. The Court determined Defendant’s argument was flawed because it rested on the incorrect premise that his initial confinement was a “sentence” separate from his probation sentence. Because jail imposed as a special condition of probation is part of the probationary sentence, it was not a separate sentence. Thus, the trial court had authority to impose a jail sentence after revoking Defendant’s probation under ORS 137.545(5)(a)(B) and did not err. Affirmed.