# State v. Dummitt

> Court of Appeals of Oregon · October 14, 1992 · 115 Or. App. 487

URL: https://www.frixlaw.com/law-library/cases/9553510

## Case

- **Full name:** STATE OF OREGON, Respondent, v. THEARL EUGENE DUMMITT, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** October 14, 1992
- **Citations:** 115 Or. App. 487; 839 P.2d 246; 1992 Ore. App. LEXIS 1857
- **Precedential status:** Published
- **Opinion:** Concurring in part by Edmonds
- **Judges:** Warren, Riggs, Edmonds
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9553510

## Opinion text

EDMONDS, J.,
concurring in part; dissenting in part.
I concur that the judgment improperly requires defendant to serve 90 days in jail. I disagree with the majority’s other holding.
The majority holds that the terms of a 36-month probationary sentence imposed at the same time as a 90-month prison term are “subsumed in the post-prison supervision term.” 115 Or App at 490. The result is that the trial court loses its authority to supervise defendant. The majority reasons that the language of OAR 253-12-020(3)(a) supports its conclusion:
“(3) The supervision term of the consecutive sentences shall be:
“(a) The presumptive post-prison supervision term imposed for the primary offense if the sentence for any offense includes a prison term.”
The majority is wrong, because the trial court did not impose “consecutive sentences.” It imposed a probationary *492 sentence that is to be served concurrently with a prison sentence. 1 The only part of the probationary sentence that is consecutive to the prison sentence is the 90-day jail sentence, which the state concedes must be served in prison. See OAE 253-12-020(2)(d). “Consecutive” means that one sentence begins after another ends. According to the sentencing judgment, defendant is to serve his probationary term at the same time that he serves his prison term. By its express terms, OAR 253-12-020(3)(a) does not apply to defendant’s sentences.
Moreover, the majority’s premise that the probation term necessarily becomes part of the post-prison supervision term is incorrect. Whether, in fact, a term of probation will expire while a defendant is serving a prison sentence or is under post-prison supervision cannot be forecast with certainty at the time of sentencing. Subsequent to the Department of Corrections assuming authority over a defendant, convictions may be reversed or other events may occur that can influence the release date.
A trial judge is charged with the responsibility of imposing sentences that protect the public from the defendant as well as the defendant from himself. The judge is best able to provide both protections because of his peculiar knowledge of the needs of both as the result of his involvement in the trial process. In choosing to impose a probationary term, the judge is presumed to be cognizant of the usefulness of probation. A probationary term with specific *493 conditions may achieve a result that is unavailable by the imposition of a prison term or post-prison supervision. Second, probation provides ongoing accountability to the trial court, an element critical to rehabilitation of the defendant. The majority’s decision ehminates an important part of a trial court’s arsenal to carry out its mandated responsibility. If the legislature had intended such a result, it could have expressly provided it. In the absence of such an expression, the majority errs when it imputes to the legislature the intention to abrogate the pre-guidelines authority of trial courts to impose such sentences.
I dissent from the majority’s emasculation of the trial court’s sentencing authority.
The sentences provide:
“IT IS FURTHER ORDERED that the defendant is sentenced to the custody of the Department of Corrections of the State of Oregon for the crime of MANSLAUGHTER IN THE FIRST DEGREE for a period not to exceed ninety (90) months, as established in the Guidelines Sentencing Report attached to the original copy of this judgment;
“IT IS FURTHER ORDERED that for the crime of MANSLAUGHTER IN THE FIRST DEGREE the defendant is sentenced to the custody of the Department of Corrections of the State of Oregon under ORS 161.610 (Enhanced Penalty for Firearm) for a minimum period of sixty (60) months.
“IT IS FURTHER ORDERED that for the crime of EX-CONVICT IN POSSESSION OF A FIREARM the defendant is placed on probation to the Department of Corrections for a period of thirty-six (36) months upon the terms and conditions set forth in the attached Conditions of Probation which conditions are hereby made a part of this judgment. The Court imposes one hundred eighiy (180) custody units, of which ninety (90) units are to be served in the Lane County Jail, consecutive to the penitentiary sentence imposed above, and are now being used:”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9553510. Public record. Not legal advice.