State v. Towle

BUTTLER, P. J.

In 1981, defendant was charged by two separate indictments with the crimes of burglary in the first degree in Linn County, to each of which he pled guilty. He was sentenced to two concurrent five-year terms of imprisonment, with execution suspended, and was placed on probation for a period of five years. Subsequently, his probation was revoked because he was convicted of another burglary in Lane County, for which he was sentenced to five years. At that time, the two five-year sentences in Linn County were ordered executed, to run consecutively to the five-year term of imprisonment imposed in Lane County. Defendant appeals from the Linn County sentences, contending that the court exceeded its authority in ordering that the two five-year sentences run consecutively to the five-year sentence in Lane County.

The state concedes correctly that State v. Stevens, 253 Or 563, 456 P2d 494 (1969), limited the Linn County court to execution of the previous sentencing order and precludes that court from amending it to provide that the two five-year sentences run consecutively to the Lane County sentence. Accordingly, the sentencing order is modified to delete the portion that orders the two five-year sentences to run consecutive to the Lane County sentence. As in Stevens, that language is surplusage and is separable.

Sentencing order modified to delete portion which orders the two five-year sentences to run consecutive to the Lane County sentence.