State v. Flores-Celestino
Case # A152528
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A152528.pdf
Defendant Flores-Celestino was on probation when Police Officers found him in possession of a knife and marijuana. The State moved for an order to show cause why Flores-Celestino’s probation should not be revoked. The court held a hearing and revoked probation. However, the court later changed its mind and wrote “VACATE” across the face of the judgment revoking Flores-Celestino’s probation. The State objected to the court’s changing the sentence. In an email to the court, the State suggested that the court did not have authority to vacate its judgment. The State included a brief (prepared for another case) that presented an analysis of ORS 138.083, which provides authority for the court to modify entries of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors or to delete or modify any erroneous term in the judgment. The court had a hearing on the matter and concluded that it did not have authority to vacate its order revoking probation. Accordingly, a judgment of revocation was entered. Neither party made arguments on the record regarding the court’s authority to vacate its judgment.
Flores-Celestino argues for the first time on appeal that the issue in this case is governed by ORS 137.010(6), which provides “[t]he power of the judge of any court to suspend execution of any part of a sentence or to sentence any person convicted of a crime to probation shall continue until the person is delivered to the custody of the Department of Corrections [DOC].” He contends that the trial court erred in concluding that it lacked authority to vacate its judgment without making a factual finding of whether Flores-Celestino had been delivered to the custody of the DOC by the time that the court attempted to vacate its judgment. He further contends that the trial court’s error was plain error.
To be plain error, the claimed error must 1) be an error of law, 2) be obvious, 3) and appear on the face of the record. The Court of Appeals notes that ORS 137.010(6) does not expressly require a court to make a specific finding, on the record, as to whether a judgment has been executed. Thus, it is not obvious that the trial court erred, and the error is therefore not plain. Accordingly, the Court of Appeals affirms the judgment.