It's Still Illegal
by: Rjohnson • August 10, 2012 • no comments
This is a followup to a post I wrote last year, arguing that the denial of credit for time served is illegal .
I recently sat through an afternoon of PV hearings in the county that shall not be named. Because I had filed a written motion and wanted to argue, I was punished by having to wait to the end. And in most cases, maybe every case (my attention wandered a bit), the judge imposed a sentence of something like "fifteen days plus time served." I took that to mean that the judge was imposing a determinate jail term plus however much time the client had already spent in jail. That means a shorter sentence for someone who bailed out; or for someone who was lucky enough to be arrested on Thursday for a Friday hearing rather than on Friday for a Tuesday hearing. Such sentences are appalling and illegal.
By statute, the court has a duty to ascertain and impose punishment. ORS 137.010. That sentence may include a term of imprisonment under ORS 137.010(7). But credit for time served in the county jail is calculated by the sheriff. ORS 137.320(4).
So, by imposing a sentence that adds credit for time served to a determinate term, the court is violating ORS 137.010 by delegating part of the the sentencing decision to the sheriff. Further, that process discriminates against people who can't afford bail, which is illegal for the reasons set forth in my earlier post. It also sounds to me like an invalid exercise of discretion, or, rather, a failure to exercise discretion. See, e.g., State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987) (holding that a trial court errs as a matter of law if it "fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of discretion.") See also Antunez v. Lampert, 169 Or App 196, 200, 7 P3d 735 (2000) (Wollheim, J., concurring) (to properly reflect the exercise of discretion, "the trial court's consideration need not be lengthy or complex, but it must indicate why the trial court took the action it took").
I'm not sure how much one could do about this at the PV hearing. If the judge says "fifteen days plus time served" and you object, the judge might well say "Okay, Mr. (or Ms.) Smartypants, thirty days with credit for the entire weekend that the defendant spent in jail." I don't think the client would appreciate the moral victory. Of course, it's possible that the judge would agree with you and remove the 'time served" term (doubtful) or ignore you and impose the illegal sentence anyway (much more likely), which you could get taken care of on appeal assuming you could get the court to agree to decide the appeal in two weeks, rather than the more typical two years. But, it's galling, and it means that you probably want to know if your client has more than the usual credit for time served before you go in for the hearing.
