Summary
In Ramirez our Supreme Court held, following the mandate of Turner, that in a probation revocation situation where the initial sentence is set aside, defendant is not subject to resentencing to any longer term than that remaining on the original sentence.
Summary of this case from State v. StewartOpinion
Argued May 1, 1967
Reversed and remanded June 21, 1967 Perry, C.J., dissented.
IN BANC
Appeal from Circuit Court, Malheur County, JEFF D. DORROH, JR., Judge.
Reversed and remanded for resentencing.
Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed a brief for appellant.
H. Clifford Looney, District Attorney, Vale, argued the cause and filed a brief for respondent.
Before PERRY, Chief Justice, and McALLISTER, SLOAN, O'CONNELL, DENECKE, REDDING and FORT, Justices.
Ramirez pleaded guilty to an indictment charging him with assault with a dangerous weapon. In October, 1962, imposition of sentence was suspended and he was placed on three years' probation. His probation was revoked in June, 1965, and he was sentenced to five years in the Correctional Institution. The maximum is ten years. Upon post-conviction petitioner's sentence was set aside because he did not have counsel at the sentencing. In June, 1966, a second revocation hearing was held, his probation was revoked, and he was again sentenced to five years in the Correctional Institution with no credit for the year served. The same judge conducted both proceedings.
This is an appeal from that sentence.
This appeal is governed by State v. Turner, 247 Or. 301, 429 P.2d 565 (1967), decided this date.
In this case no evidence adverse to the defendant was presented at the second hearing that was not presented at the first. The Correctional Institution's progress reports were that the defendant's conduct and achievement in the institution were excellent. The sentencing court indicated that it viewed the evidence differently on the second hearing; however, it did not indicate that this influenced it in the imposition of sentence.
The rule announced in State v. Turner, supra, requires us to reverse and remand this matter for resentencing.
PERRY, C.J., dissents.