State v. Hampton

Only crimes directly listed by name under subsection (1) of ORS 137.717 meet the criteria for disqualifying a defendant from a downward depature in sentencing under ORS 137.717(6)(a).

Defendant was convicted of several property crimes. Because Defendant qualified as a repeat property offender under ORS 137.717, the State requested that he be sentenced under the repeat offender (REPO) guidelines. Defendant argued that he qualified under ORS 137.717(6) for a downward departure in sentencing. The trial court held that the statute required the Defendant not be on probation, and because he was on probation the court sentenced him per the REPO guidelines. Defendant assigns error. 

ORS 137.717(6)(a) requires that to qualify for a downward departure, the Defendant be “not on probation, parole or post-prison supervision for a crime listed in subsection (1)” at the time of the crime. The parties disagreed as to whether second-degree theft, for which the Defendant was on probation, met the criteria. The Court analyzed the context of the statute and held that “crime[s] listed in subsection (1) of this section” referred only to crimes listed by name in subsection (1) itself, not crimes listed in subsection (2) which were mentioned indirectly by subsection (1), and the trial court erred in finding that the Defendant did not qualify for a downward departure. 

VACATED AND REMANDED FOR RESENTENCING.