Appeal from Circuit Court, Lane County. Edwin E. Allen, Judge. No. 94030.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief were Gary D. Babcock, Public Defender, and J. Marvin Kuhn, Deputy Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.
This is an appeal from an order revoking probation and imposing a five-year sentence. Defendant contends that the trial court did not have jurisdiction over him because the order placing him on probation was not statutorily authorized.
Defendant was found guilty on August 20, 1969 of failure to provide support for minor children. Former ORS 167.605. On October 15, 1969 the imposition of sentence was suspended and defendant was placed on three years' probation. In December 1970 the prosecutor initiated proceedings to revoke probation,
and a bench warrant issued. On April 8, 1971 a show cause hearing was held concerning probation revocation. Upon the conclusion of this hearing an order revoking probation issued and in and as a part of the same action it was ordered that sentence be imposed the next day. At the sentence hearing the next day, April 9, 1971, the court imposed probation again, this time placing defendant on probation for a period of five years from October 14, 1969 (the date of commencement of his original probation term) and imposing several new conditions upon the defendant including that he serve 120 days in the county jail. On May 18, 1972 this probation was revoked upon a show cause order when defendant admitted violation of a condition of his probation and on May 22, 1972 defendant was sentenced to five years' imprisonment, with credit for time previously served. It is from the May 1972 proceedings that defendant appeals.
Primarily, the issue is whether the trial court by issuing its order revoking probation on April 8, 1971 lost its power and could not the next day suspend imposition of sentence and again place the defendant on probation. If this was punishment and it was imposed without authorization by statute the judgment is void. State v. Sisney, 250 Or 198, 440 P2d 372 (1968); State v. Cotton, 240 Or 252, 254, 400 P2d 1022 (1965).
The defendant has based his argument on the provisions of the current law.*fn1 We consider only the
law in effect before the criminal code revision of 1971 because defendant's indictment was based on an act that occurred prior to January 1, 1972. ORS 161.035 (3). Moreover, defendant challenges the trial court's power to place him on probation on April 9, 1971, and the ...