Summary
In State v. Johnson, 96 Or. App. 641, 773 P.2d 812 (1989), we held that an unauthorized part of a sentence that referred the defendant to a mental health department for evaluation and treatment was a sentence that exceeded the maximum allowable by law under ORS 138.050. Likewise, defendant's claim that the trial court was not authorized to modify his sentences after they had been executed is a claim that the sentences exceeded the maximum allowable by law under ORS 138.050.
Summary of this case from State v. PetersOpinion
88-20829; CA A50398
Argued and submitted April 24, 1989
Paragraph (2) of judgment vacated; otherwise affirmed May 17, 1989
Appeal from the District Court, Lane County, Ann Aiken, Judge.
Hubert G. Duvall, Jr., Eugene, argued the cause and filed the brief for appellant.
Kate Waldo, 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 Graber, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Paragraph (2) of judgment vacated; otherwise affirmed.
The sole issue on appeal is the validity of a part of defendant's sentence for criminal mischief in the third degree, ORS 164.345, and disorderly conduct, ORS 166.025, following revocation of probation. In addition to sentencing him to a period of incarceration and imposing a fine, the trial court ordered: "(2) Defendant shall be rereferred to Lane County Mental Health for evaluation [and] treatment." Defendant argues, the state concedes, and we agree that that portion of the sentence is without statutory authority and, therefore, "exceeds the maximum sentence allowable by law." ORS 138.050.
The state urges us to affirm nonetheless and to treat the mental health referral "as the sentencing judge's non-binding recommendation that defendant submit to mental health treatment." We decline the invitation; there is no body to whom the "recommendation" can be made. Cf. State v. George, 90 Or. App. 496, 498, 752 P.2d 1265 (1988) (trial court could make non-binding recommendation that Board of Parole order restitution as condition of parole).
Paragraph (2) of judgment vacated; otherwise affirmed.