Appeal from Circuit Court, Lane County. Frank J. Van Dyke, Judge Pro Tempore. No. 78-7127.
R. Glenn Mittermann, Eugene, filed the brief for appellant.
James A. Redden, Attorney General, Walter L. Barrie, Solicitor General, and Douglas F. Foley, Certified Law Student, Salem, filed the brief for respondent.
Roberts, Judge. Buttler, Presiding Judge, and Gillette, Judge.
In this appeal defendant seeks to vacate an amended sentence order.
While serving a sentence in the Federal Correctional Institution in Lompoc, California, defendant was transported to Oregon under the terms and conditions of the Interstate Compact Agreement on Detainers, ORS 135.775 -- 135.793, to stand trial in Lane county for theft. While in the Lane County jail, defendant was technically in federal custody, but this fact was not noted in the records. Due to this omission he was mistakenly released from the Lane County jail by the custody referee. Defendant subsequently failed to appear on the theft charge and was charged with failure to appear. ORS 162.205. He entered a plea of guilty and was convicted of the failure to appear charge. He had previously been convicted on the theft charge.
At the sentencing hearing on the failure to appear, the court orally imposed the following sentence
"* * * Therefore it is the judgment of the Court that you be and you are hereby sentenced to incarcerative period of five years and that that sentence shall run concurrently with the time you are serving for Theft in the First Degree in Lane County Circuit Court case #77-2289, and that the State may have judgment for its costs."
The court made no other statement as to the nature of the defendant's sentence.
A sentence order was subsequently filed in the case which reflected the court's oral judgment. The court then filed an amended sentence order which was identical to the previous sentence order except for the addition of the following language:
"IT IS FURTHER ORDERED that execution of said sentence is to commence upon the expiration of the defendant's present term of incarceration at the Federal ...