The sole issue in this case is whether time spent in a county jail between a person’s arrest and trial must be credited against county jail confinement time ordered as a condition of probation. We hold that our statutes do not require this.
Defendant McClure was arrested on December 25, 1981 for resisting arrest and assaulting a police officer. He was confined 49 days in the county jail before he was released on his own recognizance February 11, 1982. Following his trial, the jury found him guilty of both charges.
The trial judge pronounced sentence as follows:
“* * * I am going to suspend imposition of sentence and place you on two years supervised probation under Project Misdemeanant with the cоnditions that the first 90 days be spent in Jackson County Jail, that you participate in any mental health programs, alcohol or otherwise recommended by your рrobation officer, that you make restitution for any medical bills incurred, and restitution for court-appointed attorney’s fees. If you have a job, and your аttorney can make the arrangements, I will authorize work release during that period of time.”
The trial court did not give defendant credit for the 49 days he was confined in the county jail before the trial.
1
The defendant failed to claim during the hearing that he was entitled to this credit.
2
The Court of Appeals affirmed without opinion.
State v. McClure,
Defendant now contends that the trial court lacked authority to deny him credit for the time he had already served. Defendant cites ORS 137.320(4), which requires that imprisonment after arrest be credited towards the term of a sentence in a county jail:
*735 “When the judgment is imprisonment in the county jail or a fine and that the defendant be imprisoned until it is paid, the judgment shall be executed by thе sheriff of the county. The sheriff shall compute the time the defendant was imprisoned after arrest and prior to the commencement of the term speсified in the judgment. Such time shall be credited towards the term of the sentence.”
Defendant also relies on ORS 137.390:
“The commencement, term and termination of a sentence of imprisonment in the county jail is to be ascertained by the rule prescribed in ORS 137.370 * * *.”
The pertinent part of ORS 137.370 reads:
“(2) * * *when a person is sentenced to imprisonment in the custody of the Corrections Division, for the purpose of computing the amount of sentence served the term of confinement includes only:
“(a) The time that the person is confined by any authority after thе arrest for the crime for which sentence is imposed; * * *.”
If defendant had actually received a sentence of imprisonment, either in a county jail or in thе custody of the Corrections Division, the statutes make it clear that his post-arrest imprisonment time, or “back time,” must be credited to his sentence. In the presеnt case, however, the judge suspended the imposition of defendant’s sentence and placed him on probation for two years. As part of his probation, the orders require defendant to spend 90 days in the county jail, as authorized by ORS 137.540(2)(a):
“(2) In addition to the general conditions, the court may impose speciаl conditions of probation for the protection of the public or reformation of the offender, or both, including, but not limited to, that the probationer shall:
“(a) Be confined to the county jail for a period not to exceed one year or one-half of the maximum period of confinement that could be imposed for the offense for which the defendant is convicted, whichever is lesser.”
This statute does not require that “back time” be credited.
Defendant’s basic position is that the statutes quoted above require that he be given credit for the time he was already confined. He also makes constitutional arguments *736 (although without citing any constitutional provisions) that to fаil to give this credit would be a violation of equal protection and could result in a person being confined beyond the statutory maximum, 3 evidently in violation of the guarantee against disproportionate sentences.
The state answers by arguing that probation is not the imposition of a sentence, relying on
State ex rel Dillavou v. Foster,
The state also contends that because there is no statutory authority, a judge has no discretionаry power to give this sort of credit. Legislative history shows that before the enactment of the amendments cited above which make the granting of credit for рretrial confinement mandatory, sentencing judges in Oregon exercised their discretion on this question. We are not now required to decide whether Oregon judges аctually have this inherent power, because the only possible challenge that defendant could make following a discretionary refusal to give credit would be a contention of abuse of discretion. Defendant in the present case has alleged no facts or circumstances that would support а finding of *737 abuse of discretion in the present case, and we could not so find.
The time defendant spent incarcerated pretrial is not included in his presentеnce report, but we note that the sentencing judge earlier ordered defendant released on his own recognizance, so the judge knew that defendant had been confined pretrial. It is likely that the judge considered this fact in setting the conditions of defendant’s probation.
We find no merit in defendant’s argument that the fаilure to grant credit for his pretrial incarceration was a violation of equal protection.
The state concedes that if the combination of the pretrial confinement time and the confinement time served as a condition of probation exceeded the statutory maximum, a constitutional рroblem might arise. It argues that this case does not present such a problem. We agree and therefore decline to address it until we are actually рresented with such a case.
The judgment of the Court of Appeals is affirmed.
Notes
We note that if a defendant serving a sentence in a county jail fails to receive credit for pretrial incarceration as mandated by the statute, his proper remedy would be an action against the sheriff, rather than a direct appeal from his sentence, becаuse it is the sheriff who has the obligation to compute the proper amount of credit and to release him accordingly. ORS 137.320.
Defendant argues that he did not waive his objection by failing to bring the purported error to the attention of the court because the court lacked authority to deny this credit, relying on
State v. Miller,
This could happen if the time spent in confinement after arrest and before trial exceeded half of the statutory maximum to which the defendant could be sentenced, and then the judge orderеd defendant to serve one half of the statutory maximum in confinement as part of a probation order. The statutory maximum period of confinement for а Class C misdemeanor is 30 days. ORS 161.615(3). If a defendant was confined for 16 days before trial, and then as a condititon of his probation ordered to serve one half the mаximum, or 15 days, his total confinement time would exceed the statutory maximum.
The California Legislature did just that following a Court of Appeals decision holding that under the California statutory scheme, pretrial detention is not to be credited to confinement ordered as a condition of probation. People v. Hunter, 68 Cal App 3d 389, 137 Cal Rptr 299 (1977).