Opinion
90-NB-0185; CA A65016
Argued and submitted June 20, 1991
Remanded for resentencing August 21, 1991
Appeal from District Court, Coos County.
Robert E. Jones, Judge.
Mary M. Reese, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.
Yuanxing Chen, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Conviction affirmed; sentence vacated; remanded for resentencing.
Defendant was convicted of driving under the influence of intoxicants. ORS 813.010. The trial court sentenced her to 30 days in jail, with 25 days suspended, and placed her on three years probation. Defendant contends that the trial court lacked authority to impose a sentence and also place her on probation. Although she did not object to the sentence below, we exercise our discretion to review the apparent error, because it goes to the sentencing authority of the court. ORAP 5.45(2); State v. Vasby, 101 Or. App. 1, 788 P.2d 1024 (1990); State v. Braughton, 28 Or. App. 891, 561 P.2d 1040 (1977). The state concedes error, and we accept the concession.
In her second assignment, defendant challenges the condition of probation that requires her to submit to blood, breath or urine tests on requests by police. On remand, if the trial court conditions probation on submitting to those tests, the condition must comply with ORS 137.540.
Conviction affirmed; sentence vacated; remanded for resentencing.