Opinion
CF 87-584; CA A47496
Argued and submitted January 30, 1989
Probation condition requiring payment of restitution vacated; otherwise affirmed April 26, 1989
Appeal from the Circuit Court, Umatilla County, J.F. Olsen, Judge.
Henry M. Silberblatt, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Linda DeVries Grimms, 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 Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Probation condition requiring payment of restitution vacated; otherwise affirmed.
Defendant appeals his conviction for assault in the fourth degree and challenges only a condition of probation requiring that he pay $998 in restitution to the victim. Defendant was originally charged with assault in the second degree for hitting the victim in the mouth with a beer bottle and for kicking him in the head. He pleaded guilty to the lesser included offense of assault in the fourth degree, ORS 163.160, but admitted only that he kicked the victim in the head. The court suspended imposition of sentence and placed him on probation for four years.
We can review the condition of probation under ORS 138.040, even though defendant pleaded guilty, because the court did not sentence him. State v. Donovan, 307 Or. 461, 770 P.2d 581 (1989).
Defendant disputes the requirement that he pay restitution for the costs incurred in repairing the victim's teeth that were knocked out when the victim was struck with the beer bottle. We agree with the state's concession that the court erred in imposing that condition, because defendant's criminal liability for knocking out the victim's two front teeth was never established. ORS 137.106; State v. Armstrong, 44 Or. App. 219, 222-23, 605 P.2d 736, rev den 289 Or. 45 (1980).
Defendant's remaining argument does not merit discussion.
Probation condition requiring payment of restitution vacated; otherwise affirmed.