State v. McEahern

867 P.2d 568 (1994)

126 Or. App. 201

STATE of Oregon, Respondent, v. Robert John McEAHERN, Appellant.

91-07-33488; CA A76891.

Court of Appeals of Oregon.

Argued and Submitted October 27, 1993.

Decided February 2, 1994.

*569 Steven V. Humber, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Kaye E. Sunderland, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before DEITS, P.J., RIGGS, J., and DURHAM, J. Pro Tem.

DEITS, Presiding Judge.

Defendant appeals his sentence, contending that the trial court erred by denying him credit for time served. We affirm.

Defendant pleaded guilty to criminal mischief in the first degree, ORS 164.365, and attempted theft in the second degree, ORS 164.045.[1] On the first charge, the trial court imposed the maximum dispositional departure sentence of six months imprisonment with one year post-prison supervision. OAR 253-08-005(1)(a); OAR 253-05-002(2)(a). The judgment specified that the prison time was imposed "with no credit for time served." The court suspended sentence on the second charge and placed defendant on five years probation.[2]

The state concedes that the court did not have authority to deny defendant credit for time served. Nissel v. Pearce, 307 Or. 102, 105, 764 P.2d 224 (1988). Under ORS 137.320,[3] the Department of Corrections is given the authority to compute credit for time served. The state contends, however, that defendant did not preserve the error and that we should not exercise our discretion to reach it, ORAP 5.45(2), because defendant invited the error. The record shows that, after the court imposed the sentence, defendant's counsel requested that the court exercise its discretion to grant credit for time served. The court initially declined to do so on the ground that it lacked the authority. However, following defense counsel's insistence that "[t]he guidelines specifically say the Court has discretion," the court said that it would exercise its discretion and that it would not grant credit for time served.

We agree that defendant failed to preserve this error, and we decline to exercise our discretion to review it. State v. Farmer, 317 Or. 220, 224, 856 P.2d 623 (1993); State v. Castrejon, 317 Or. 202, 211, 856 P.2d 616 (1993); Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991). We express no opinion as to the effect on the department of the trial court's disposition of the request for credit for time served.

Affirmed.

[1] Defendant's plea was not entered as part of a plea agreement; hence, ORS 138.222(2)(d) does not preclude our review. See State v. Adams, 315 Or. 359, 847 P.2d 397 (1993).

[2] Defendant does not challenge the imposition of either sentence.

[3] ORS 137.320 provides, in part:

"(1) When a judgment includes commitment to the legal and physical custody of the Department of Corrections, the sheriff shall deliver the defendant, together with a copy of the entry of judgment and a statement signed by the sheriff of the number of days the defendant was imprisoned prior to delivery, to the superintendent of the Department of Corrections institution to which the defendant is initially assigned pursuant to ORS 137.124.

"* * * * *

"(3) Upon receipt of the information described in subsection (1) or (2) of this section, the Department of Corrections shall establish a case file and compute the defendant's sentence in accordance with the provisions of ORS 137.370."

ORS 137.370(2) provides, in part:

"[W]hen a person is sentenced to imprisonment in the custody of the Department of Corrections, for the purpose of computing the amount of sentence served the term of confinement includes only:

"(a) The time that the person is confined by any authority after the arrest for the crime for which sentence is imposed[.]"