State v. Hunt

Under ORS 138.035(3), “new or modified condition[s] of probation” does not include sanctions; sanctions imposed on a probationer by a trial court are not appealable under ORS 138.035(3).

Defendant petitioned for reconsideration of the Appellate Commissioner's dismissal of Defendant’s appeal of two orders made by the trial court involving his probation.  Defendant assigned error to the Appellate Commissioner’s determination that the orders were not appealable under ORS 138.035(3).  Defendant argued that the trial court’s orders—requiring Defendant to serve a day in jail, complete community service, and pay a fine—constituted modifications to his probation and were therefore appealable.  In response the State argued that the orders were unappealable sanctions imposed by the trial court.  Under ORS 138.035(3), “new or modified condition[s] of probation” does not include sanctions; sanctions imposed on a probationer by a trial court are not appealable under ORS 138.035(3).  The Court examined related statutes and administrative rules.  In these, the Court found that there is a distinction between a “condition of probation” and a “sanction.”  Since the Legislature did not include “sanction” in ORS 138.035(3) as grounds for an appeal, the Court held that Defendant could not appeal any sanctions in the trial court’s orders.  The Court held that Defendant could not appeal the trial court’s orders because all of the actions in the orders constituted sanctions, not modifications of conditions.  Reconsideration allowed; Appellate Commissioner’s dismissal of appeal adhered to.