Opinion
C88-01-30343; CA A60660
Argued and submitted February 28, 1990
Affirmed April 4, 1990
Appeal from Circuit Court, Multnomah County.
Harl H. Haas, Judge.
Sally L. Avera, Acting Public Defender, Salem, argued the cause and submitted the brief for appellant.
Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM
Portion of judgment suspending imposition of sentence vacated; remanded for imposition of sentence on count 2; judgment affirmed otherwise.
Defendant pled guilty to two counts of forgery in the first degree. The trial court sentenced her on count 1 to four years' imprisonment with a 14-month minimum. On count 2, it suspended imposition of sentence and placed her on five years' probation, notwithstanding her request that a sentence be imposed. Defendant challenges that portion of the judgment, arguing that, under State v. Carmickle, 307 Or. 1, 762 P.2d 290 (1988), the court erred in denying her request to be sentenced on both counts.
The state concedes that defendant had a right to refuse probation and to be sentenced. Accordingly, we vacate the suspension of imposition of sentence on count 2 and remand for imposition of sentence.
The legislature effectively overruled State v. Carmickle, supra, to permit courts to suspend imposition or execution of sentence and place a defendant on probation, notwithstanding any objections that he might have. Or Laws 1989, ch 849, § 1 (now ORS 137.010 (5)). However, that amendment had not taken effect when defendant was sentenced.
Defendant does not challenge the judgment on count 1.
Portion of judgment suspending imposition of sentence vacated; remanded for imposition of sentence on count 2; judgment affirmed otherwise.