2017 ORS 137.010¹
Duty of court to ascertain and impose punishment

(1) The statutes that define offenses impose a duty upon the court having jurisdiction to pass sentence in accordance with this section or, for felonies committed on or after November 1, 1989, in accordance with rules of the Oregon Criminal Justice Commission unless otherwise specifically provided by law.

(2) If it cannot be determined whether the felony was committed on or after November 1, 1989, the defendant shall be sentenced as if the felony had been committed prior to November 1, 1989.

(3) Except when a person is convicted of a felony committed on or after November 1, 1989, if the court is of the opinion that it is in the best interests of the public as well as of the defendant, the court may suspend the imposition or execution of any part of a sentence for any period of not more than five years. The court may extend the period of suspension beyond five years in accordance with subsection (4) of this section.

(4) If the court suspends the imposition or execution of a part of a sentence for an offense other than a felony committed on or after November 1, 1989, the court may also impose and execute a sentence of probation on the defendant for a definite or indefinite period of not more than five years. However, upon a later finding that a defendant sentenced to probation for a felony has violated a condition of the probation and in lieu of revocation, the court may order the period of both the suspended sentence and the sentence of probation extended until a date not more than six years from the date of original imposition of sentence. Time during which the probationer has absconded from supervision and a bench warrant has been issued for the probationer’s arrest shall not be counted in determining the time elapsed since imposition of the sentence of probation.

(5) If the court announces that it intends to suspend imposition or execution of any part of a sentence, the defendant may, at that time, object and request imposition of the full sentence. In no case, however, does the defendant have a right to refuse the court’s order, and the court may suspend imposition or execution of a part of the sentence despite the defendant’s objection or request. If the court further announces that it intends to sentence the defendant to a period of probation, the defendant may, at that time, object and request that a sentence of probation or its conditions not be imposed or that different conditions be imposed. In no case, however, does the defendant have the right to refuse a sentence of probation or any of the conditions of the probation, and the court may sentence the defendant to probation subject to conditions despite the defendant’s objection or request.

(6) The power of the judge of any court to suspend execution of any part of a sentence or to sentence any person convicted of a crime to probation shall continue until the person is delivered to the custody of the Department of Corrections.

(7) When a person is convicted of an offense and the court does not suspend the imposition or execution of any part of a sentence or when a suspended sentence or sentence of probation is revoked, the court shall impose the following sentence:

(a) A term of imprisonment;

(b) A fine;

(c) Both imprisonment and a fine; or

(d) Discharge of the defendant.

(8) This section does not deprive the court of any authority conferred by law to enter a judgment for the forfeiture of property, suspend or cancel a license, remove a person from office or impose any other civil penalty. An order exercising that authority may be included as part of the judgment of conviction.

(9) When imposing sentence for a felony committed on or after November 1, 1989, the court shall submit sentencing information to the commission in accordance with rules of the commission.

(10) A judgment of conviction that includes a term of imprisonment for a felony committed on or after November 1, 1989, shall state the length of incarceration and the length of post-prison supervision. The judgment of conviction shall also provide that if the defendant violates the conditions of post-prison supervision, the defendant shall be subject to sanctions including the possibility of additional imprisonment in accordance with rules of the commission. [Amended by 1971 c.743 §322; 1981 c.181 §1; 1987 c.320 §27; 1989 c.790 §6; 1989 c.849 §1; 1993 c.14 §1; 2003 c.576 §388; 2005 c.10 §2]

Notes of Decisions

Unless it is clear from the judg­ment that the sen­tences are to be served consecutively, they are to be construed as concurrent. State v. Blake, 7 Or App 307, 490 P2d 1026 (1971)

The oral pronounce­ment from the bench is the judg­ment. State v. Blake, 7 Or App 307, 490 P2d 1026 (1971)

A Trial Court Has Inherent Power to Impose A Combined Concurrent

B1.consecutive sen­tence for a single of­fense. Trahan v. Cupp, 8 Or App 466, 493 P2d 1391 (1972), Sup Ct review denied, cert. denied, 409 US 884

A trial court has inherent power to impose concurrent or consecutive sen­tences in appropriate situa­tions. Trahan v. Cupp, 8 Or App 466, 493 P2d 1391 (1972), Sup Ct review denied, cert. denied, 409 US 884

Deterrent effect on others is a relevant considera­tion in imposing sen­tence. State v. Patzer, 8 Or App 491, 493 P2d 1389 (1972), Sup Ct review denied

Trial court lacked authority to stay period of proba­tion pending outcome of ap­peal. State ex rel Dillavou v. Foster, 273 Or 319, 541 P2d 811 (1975); State v. Popp, 118 Or App 508, 848 P2d 134 (1993)

The court’s supervisory jurisdic­tion over a defendant is limited to a max­i­mum of five years from the date of disposi­tion. State v. Maddox, 29 Or App 787, 564 P2d 1372 (1977), Sup Ct review denied

Where show cause order initiating revoca­tion of defendant’s proba­tion was issued prior to expira­tion of proba­tionary period, court retained jurisdic­tion to enter revoca­tion order after the period had expired. State v. Lopez, 30 Or App 687, 569 P2d 1059 (1977)

Notwithstanding that max­i­mum period of im­pris­on­­ment which may be imposed for com­mis­sion of Class A misdemeanor is one year, trial court was empowered to suspend sen­tence of nine months’ im­pris­on­­ment and place defendant on proba­tion for period of five years. State v. Williams, 31 Or App 381, 570 P2d 424 (1977)

Revoca­tion of suspended sen­tence and reimposi­tion of sen­tence after October 4, 1977, requires prepara­tion of presen­tence report pursuant to [former] ORS 144.790. State v. Gale, 35 Or App 3, 580 P2d 1036 (1978)

Imposi­tion of five-year proba­tion term, commencing immediately but necessarily extending beyond three-year period of confine­ment to which defendant was contemporaneously sen­tenced on an­oth­er charge was within statutory authority of court. State v. Jones, 36 Or App 271, 584 P2d 349 (1978)

Where defendant was convicted of rape and kidnapping, but judge imposed sen­tence only for rape con­vic­­tion, defendant could not complain about error. State v. Dorsey, 44 Or App 721, 607 P2d 204 (1980)

Where statute enacted after defendant committed crime provided for addi­tional year of proba­tion in lieu of proba­tion revoca­tion and defendant was placed on proba­tion for addi­tional year pursuant to that statute, defendant was subjected to greater sen­tence than that to which he was susceptible when he committed crime, in viola­tion of ex post facto pro­vi­sion of Oregon Constitu­tion. State v. Metzler, 72 Or App 555, 696 P2d 576 (1985)

Sentencing order that provides for 10 years’ im­pris­on­­ment along with separate five-year proba­tion, condi­tioned on defendant serving one year in county jail consecutive to prison term, does not violate this sec­tion because order means that jail term will be served consecutively to prison term only if defendant is released from prison before period of proba­tion expires. State v. Nunn, 84 Or App 642, 734 P2d 1375 (1987)

Where defendant pleaded guilty, argu­ment that trial court lacked authority to revoke its order suspending imposi­tion of sen­tence or to impose any sen­tence failed to raise issue within scope of appellate review. State v. Blaney, 101 Or App 273, 790 P2d 549 (1990)

Trial court may not impose condi­tions of parole as part of sen­tence but court may make express recommenda­tion to parole board for special condi­tions of parole. State v. Edwards, 103 Or App 410, 797 P2d 402 (1990); State v. Potter, 108 Or App 480, 816 P2d 661 (1991)

Trial court was without authority to impose fine as punish­ment for defendant’s mur­der con­vic­­tion. State v. Batty, 109 Or App 62, 819 P2d 732 (1991), Sup Ct review denied

Where imposi­tion of any sen­tence for misdemeanor is discre­tionary and felony sen­ten­cing guide­lines impose mandatory sen­tence, existence of felony sen­ten­cing guide­lines does not render dispropor­tionate misdemeanant’s sen­tence of incarcera­tion. State v. Rice, 114 Or App 101, 836 P2d 731 (1992), Sup Ct review denied

Because sen­ten­cing guide­lines do not apply to misdemeanor con­vic­­tions, trial court did not err by requiring defendant to serve consecutive misdemeanor sen­tences after serving prison term for felony con­vic­­tion. State v. Miller, 114 Or App 235, 835 P2d 131 (1992)

Adjudica­tions sufficient to commit juvenile to juvenile facility may be used as basis for enhancing sen­tence for crime committed as adult. State v. Stewart, 123 Or App 147, 859 P2d 545 (1993), modified 126 Or App 456, 868 P2d 794 (1994), aff’d 321 Or 1, 892 P2d 1013 (1995)

Where case is remanded for resen­ten­cing, five-year proba­tion limit applicable to suspended sen­tences is measured from date original sen­tence was imposed. State v. Lewis, 137 Or App 108, 903 P2d 391 (1995), Sup Ct review denied

Where court imposes concurrent terms of proba­tion for some counts and incarcera­tion for other counts, trial court loses authority to modify sen­tences once any sen­tence has been put into effect. State v. Hamlin, 151 Or App 481, 950 P2d 336 (1997), Sup Ct review denied; State v. Lebeck, 171 Or App 581, 17 P3d 504 (2000)

Execu­tion of judg­ment commences as soon as defendant is physically delivered to Depart­ment of Correc­tions, regardless of whether judg­ment is served concurrently or consecutively with an­oth­er judg­ment ordering defendant to depart­ment’s custody. State v. DeCamp, 158 Or App 238, 973 P2d 922 (1999)

Fine may be sen­tence, condi­tion of proba­tion, or both. State v. Zimmerman, 166 Or App 635, 999 P2d 547 (2000)

Trial court retains authority to modify legally invalid sen­tence notwithstanding execu­tion of sen­tence. State v. Horsley, 168 Or App 559, 7 P3d 646 (2000)

Completed Cita­tions

State v. Morasch, 5 Or App 211, 483 P2d 474 (1971), Sup Ct review denied; State v. Ragghianti, 5 Or App 498, 484 P2d 1125 (1971), Sup Ct review denied; State v. Smith, 6 Or App 27, 487 P2d 90 (1971), Sup Ct review denied; State v. Penland, 6 Or App 255, 486 P2d 1314 (1971), Sup Ct review denied

Law Review Cita­tions

24 WLR 1158 (1988)

1 Legislative Counsel Committee, CHAPTER 137—Judgment and Execution; Parole and Probation by the Court, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors137.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 137, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano137.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.