Opinion

State v. Noble

  • 94 Or. App. 123
  • 764 P.2d 949
Court
Court of Appeals of Oregon
Filed
Jan 31, 1989
Status
Published
Author
Rossman
On the bench
Buttler, Warren, Rossman
Cited by
5 cases
Authority
More cited than 92.6%

Overruled in part by State v. Jones, 109 Or. App. 235 (1991)

Later courts went against this

  • Overruled in part by State v. Jones, 109 Or. App. 235 (1991)

    Accordingly, we overrule the portion of Noble that pertains to the parole board.
    Court of Appeals of OregonOct 16, 1991in partRead it

The opinion

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ROSSMAN, J.

After committing a robbery at age seventeen, defendant was remanded to adult court. He pled guilty to robbery in the first degree, ORS 164.415, and was sentenced to fifteen years in prison. Pursuant to ORS 144.110, the trial court also imposed a five-year minimum sentence. On appeal, defendant argues that ORS 161.620 prohibits trial judges from imposing a minimum sentence on remanded juveniles under ORS 144.110.

ORS 161.620 provides:

“Notwithstanding any other provision of law, a sentence imposed upon any person remanded from the juvenile court under ORS 419.533 shall not include any sentence of death nor imposition of any

mandatory minimum sentence

except that a

mandatory minimum sentence

under ORS 163.105

shall be imposed

where the person was 17 years of age at the time of the offense.” (Emphasis supplied.)

ORS 144.110 states:

“(1) In any felony case, the court

may impose

a minimum term of imprisonment of up to one-half of the sentence it imposes.

“(2) Notwithstanding the provisions of ORS 144.120 and 144.780:

“(a) The board shall not release a prisoner on parole who has been sentenced under subsection (1) of this section until the minimum term has been served, except upon affirmative vote of at least four members of the board.

“(b) The board shall not release a prisoner on parole who has been convicted of murder defined as aggravated murder under the provisions of ORS 163.095, except as provided in ORS 163.105.” (Emphasis supplied.)

By its terms, ORS 161.620 prohibits only

mandatory

minimum sentences.

1

Mandatory minimum sentences are

*126

those which neither the court nor the parole board has discretion to alter.

2

See State v. Warner,

52 Or App 987, 993 , 630 P2d 385 ,

rev den

291 P2d 662 (1981). ORS 144.110 leaves imposition of a minimum sentence to the discretion of the trial court. Because its use is not mandatory, ORS 161.620 does not prohibit its application to a remanded juvenile.

3

Affirmed.

1

Because the language of ORS 161.620 is clear and unambiguous, defendant’s resort to legislative history is inappropriate.

Satterfield v. Satterfield,

292 Or 780, 782 , 643 P2d 336 (1982). We are not free to omit the word “mandatory” from the language of the statute. ORS 174.010;

See State v. Hitt,

305 Or 458, 463-64 , 753 P2d 415 (1988).

2

See, e.g.,

ORS 163.105, which provides, in relevant part:

“Notwithstanding the provisions of ORS chapter 144, ORS 421.165 and 421.450 to 421.490:

“(1) When a defendant is convicted of aggravated murder as defined by ORS 163.095, the defendant shall be sentenced to death or life imprisonment pursuant to ORS 163.150. If sentenced to life imprisonment, the court

shall order

that the defendant shall be confined for a minimum of 30 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.” (Emphasis supplied.)

See also

ORS 161.610 and ORS 163.115(3)(b).

3

Defendant’s contention that our interpretation would create penalties so disproportionate as to offend Oregon’s constitution is without merit.

See State v. Turner,

296 Or 451, 456-57 , 676 P2d 873 (1984).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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