incidental violation in Oregon

2000State v. Racicot, 106 Or.App. 557, 561 , 809 P.2d 726 (1991).

1996Consecutive sentences are governed by ORS 137.123, which, at the time of defendant’s sentencing, 8 provided, in part: “(3) When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (4) of this section. “(4) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the c

2026Nonprecedential Memo Op: 350 Or App 544 (2026) 549 However, under ORS 137.123(5)(a), the trial court may also impose a consecutive sentence for continuous and uninterrupted conduct if “the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense.” And as the state points out, in addition to its finding that defendant’s conduct cre- ated a risk of greater or quali

2026Nonprecedential Memo Op: 350 Or App 544 (2026) 549 However, under ORS 137.123(5)(a), the trial court may also impose a consecutive sentence for continuous and uninterrupted conduct if “the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense.” And as the state points out, in addition to its finding that defendant’s conduct cre- ated a risk of greater or quali

2025Nonprecedential Memo Op: 343 Or App 603 (2025) 611 course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense.” ORS 137.123(5)(a); see also State v. Soto, 372 Or 561, 578-83 , 551 P3d 893 (2024) (construing the consecutive sentencing statute).

2025Nonprecedential Memo Op: 343 Or App 603 (2025) 611 for which a consecutive sentence is contemplated “was not merely an incidental violation of a separate statutory provi- sion in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense.” ORS 137.123(5)(a); see also State v. Soto, 372 Or 561, 578-83 , 551 P3d 893 (2024) (construing the consecutive sentencing statute).

2016That statute provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense [.]” “[A] trial court’s determination under ORS 137.123(5)(a) that, in committing a par

2016That statute provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense [.]” “[A] trial court’s determination under ORS 137.123(5)(a) that, in committing a par

2022With the enactment of ORS 137.123, “the leg- islature intended to eliminate any inherent authority that the court might have with respect to consecutive sentences.” State v. Trice, 146 Or App 15, 21 , 933 P2d 345 , rev den, 325 Or 280 (1997) (internal quotation marks omitted); see also State v. Brooks, 187 Or App 388, 399 , 67 P3d 426 , rev den, 3 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which

2022With the enactment of ORS 137.123, “the leg- islature intended to eliminate any inherent authority that the court might have with respect to consecutive sentences.” State v. Trice, 146 Or App 15, 21 , 933 P2d 345 , rev den, 325 Or 280 (1997) (internal quotation marks omitted); see also State v. Brooks, 187 Or App 388, 399 , 67 P3d 426 , rev den, 3 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which

2021Cite as 309 Or App 554 (2021) 561 was an indication of defendant’s willingness to commit more than one criminal offense[.]” We have acknowledged that subsection (5)(a) is, “in many ways, amorphous—and per- haps inscrutable.” Anderson, 208 Or App at 415 .

2021Cite as 309 Or App 554 (2021) 561 was an indication of defendant’s willingness to commit more than one criminal offense[.]” We have acknowledged that subsection (5)(a) is, “in many ways, amorphous—and per- haps inscrutable.” Anderson, 208 Or App at 415 .

2021Relying on State v. Martinez, 270 Or App 423 , 348 P3d 285 , rev den, 357 Or 640 (2015), it argued 560 State v. Russell that ORS 137.123(5)(a)4 authorized the court to run defen- dant’s sentences consecutively because the commission of the burglary was “not merely an incidental violation of a separate statutory provision in the course of the commis- sion of a more serious crime, but rather of an indication of * * * defendant’s willingness to commit more than one crim- inal offense.” Defendant responded that the acts resulting in his convictions for both robbery and burglary were “not distinct

2021Relying on State v. Martinez, 270 Or App 423 , 348 P3d 285 , rev den, 357 Or 640 (2015), it argued 560 State v. Russell that ORS 137.123(5)(a)4 authorized the court to run defen- dant’s sentences consecutively because the commission of the burglary was “not merely an incidental violation of a separate statutory provision in the course of the commis- sion of a more serious crime, but rather of an indication of * * * defendant’s willingness to commit more than one crim- inal offense.” Defendant responded that the acts resulting in his convictions for both robbery and burglary were “not distinct

2017Austin v. McGee, 140 Or App 263, 268 , 915 P2d 1027 (1996) (it was not necessary for the court to identify which statutory paragraph it relied upon to impose consecutive sentences under former ORS 137.123(4) (1993), renumbered as ORS 137.123(5) (1995)).

2017Austin v. McGee, 140 Or App 263, 268 , 915 P2d 1027 (1996) (it was not necessary for the court to identify which statutory paragraph it relied upon to impose consecutive sentences under former ORS 137.123(4) (1993), renumbered as ORS 137.123(5) (1995)).

2017ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemplated caused

2017ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemplated caused

2015Relying on this court’s opinion in State v. Newell, 238 Or App 385 , 242 P3d 709 (2010), the state argues that ORS 137.123 does not apply to this case at all, because that statute “does not control probation revocation sanctions.” Instead, the state argues, “OAR 213-012-0040(2) controls whether probation-revocation sanctions may be imposed consecutively.” The state is correct that ORS 137.123 does not control the sanctions that a court may impose after revoking a defendant’s probation on a felony conviction.

2015Relying on this court’s opinion in State v. Newell, 238 Or App 385 , 242 P3d 709 (2010), the state argues that ORS 137.123 does not apply to this case at all, because that statute “does not control probation revocation sanctions.” Instead, the state argues, “OAR 213-012-0040(2) controls whether probation-revocation sanctions may be imposed consecutively.” The state is correct that ORS 137.123 does not control the sanctions that a court may impose after revoking a defendant’s probation on a felony conviction.

2009Rather, we (1) modify our prior opinion to delete those portions that state that State v. Ice is controlling and requires a remand for resentencing, see 218 Or App at 162,170 ; (2) adhere to our prior opinion as so modified; (3) vacate our prior disposition in light of Oregon v. Ice; and (4) affirm. *100 Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of

2009Rather, we (1) modify our prior opinion to delete those portions that state that State v. Ice is controlling and requires a remand for resentencing, see 218 Or App at 162,170 ; (2) adhere to our prior opinion as so modified; (3) vacate our prior disposition in light of Oregon v. Ice; and (4) affirm. *100 Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of

2009Rather, we (1) modify our prior opinion to delete those portions that state that State v. Ice is controlling and requires a remand for resentencing, see 218 Or App at 162,170 ; (2) adhere to our prior opinion as so modified; (3) vacate our prior disposition in light of Oregon v. Ice; and (4) affirm. *100 Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of

2009Rather, we (1) modify our prior opinion to delete those portions that state that State v. Ice is controlling and requires a remand for resentencing, see 218 Or App at 162,170 ; (2) adhere to our prior opinion as so modified; (3) vacate our prior disposition in light of Oregon v. Ice; and (4) affirm. *100 Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of

2008In terms of its total duration, defendant’s sentences consisted of six consecutive 30-year indeterminate maximum terms, followed by a term of life in prison without parole, followed by five additional consecutive 30-year indeterminate maximum terms; defendant’s concurrent sentences were subsumed within that total. 5 On appeal, defendant argues that the trial court erred in imposing what he refers to as “departure” sentences based on facts not found by a jury or admitted by him, in violation of the Sixth Amendment to the United States Constitution as applied in Apprendi v. New Jersey, 530 US 46

2008In terms of its total duration, defendant’s sentences consisted of six consecutive 30-year indeterminate maximum terms, followed by a term of life in prison without parole, followed by five additional consecutive 30-year indeterminate maximum terms; defendant’s concurrent sentences were subsumed within that total. 5 On appeal, defendant argues that the trial court erred in imposing what he refers to as “departure” sentences based on facts not found by a jury or admitted by him, in violation of the Sixth Amendment to the United States Constitution as applied in Apprendi v. New Jersey, 530 US 46

2008Id. at 313 . 2 OES 137.123(5)(a) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense[.]”

2008In State v. Ice, 343 Or 248 , 170 P3d 1049 (2007), cert granted,_US_, 128 S Ct 1657 (2008), the Oregon Supreme Court disagreed, holding that the Sixth Amendment right to jury trial does, indeed, apply to facts supporting consecutive sentences.

2005Affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemp

2005State v. Dilts, 337 Or 645 , 103 P3d 95 (2004).

2005State v. Dilts, 337 Or 645 , 103 P3d 95 (2004).

2005Affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemp

2005Affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemp

2005Affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemp

2005Affirmed. 1 ORS 137.123(5) provides: “The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds: “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemp