Opinion
83-3477-K; CA A38140
Submitted on record and briefs April 9, 1986.
Reversed and remanded July 23, 1986.
Appeal from District Court, Josephine County, J. Loyd O'Neal, Judge.
Raymond W. Hess, Grants Pass, filed the brief for appellant.
Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Jeff Bennett, Assistant Attorney General, Salem, filed the brief for respondent.
Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Reversed and remanded for appointment of counsel and for resentencing.
Defendant was convicted of driving under the influence of intoxicants (DUII). His sentence was reversed and the case was remanded for resentencing in State v. Ballew, 70 Or. App. 617, 689 P.2d 1330 (1984), because the trial court imposed costs and fines as conditions of probation without first considering defendant's ability to pay. On remand, defendant requested assistance of counsel. The trial judge denied his request and imposed the same sentence, again without inquiring into defendant's ability to pay the costs and fines. The state confesses error in the trial judge's failure to appoint an attorney to assist defendant at resentencing. See State ex rel Russell v. Jones, 293 Or. 312, 315, 647 P.2d 904 (1982). The state also confesses error in the trial judge's failure, as at defendant's first sentencing, to inquire into defendant's present and future ability to pay the costs and fines imposed. State v. Ballew, supra.
Reversed and remanded for appointment of counsel and for resentencing.