STATE v. BEDARD (1997)

Defendant petitions for reconsideration of our opinion, 141 Or.App. 398, 917 P.2d 76 (1996), in which we reversed his conviction for prostitution on the ground that the district court lacked jurisdiction of Class A misdemeanors.   We allow reconsideration, withdraw our opinion, and affirm.

 Defendant concedes that, under State v. Webb, 324 Or. 380, 927 P.2d 79 (1996), the district court had jurisdiction over the prostitution count.   He argues, however, that the court erred in sentencing him to more than three months in jail as a condition of probation.   Under Oregon Laws 1989, chapter 750, section 51,¹ the maximum term of incarceration for Class A misdemeanors is six months in jail, unless the judge finds substantial and compelling reasons to depart, and ORS 137.540(2)(a) limits the imposition of jail time as a condition of probation to one-half of the maximum sentence that could be imposed.  State v. Sellberg, 113 Or.App. 378, 379, 832 P.2d 1269 (1992).   Defendant argues that the court failed to make sufficient findings of substantial and compelling reasons to depart from those statutory limits.

 Defendant is incorrect.   The court specifically found that he had a record of four prior felony sex offenses.   As it would be in a departure under the aggravating factors for felony sentencing guidelines, see OAR 213-08-002(1)(b)(D), the court's finding here is of persistent involvement in similar offenses.   Defendant argues that prostitution is not the same offense as sexual abuse.   However, similar offenses are not identical offenses.   Rather, as we have noted in the context of felony convictions, persistent involvement in similar offenses captures a malevolent quality in the offender that is represented by the pattern of the offender's criminal behavior.  State v. Kennedy, 113 Or.App. 134, 137, 831 P.2d 712 (1992).   In this instance, defendant's offenses show a pattern of criminal sexual behavior.   Additionally, the court found that, at the time that defendant committed the prostitution offense, he was on probation or parole for sexual abuse.   Defendant's criminal activity while on release status is a substantial and  compelling reason to depart.   See State v. Mitchell, 113 Or.App. 632, 634, 833 P.2d 1324 (1992) (defendant's commission of crime while on release status shows that defendant is not deterred from committing crimes unless actually incarcerated).   There was no sentencing error.

Reconsideration allowed;  opinion withdrawn;  affirmed.

FOOTNOTES

1.   The provision was originally to expire in November 1991.   The provision has been extended by each legislature since enactment.

 De MUNIZ, Judge.