Summary
stating that, on remand, the trial court could "establish what it intended" by an "ambiguous" probation term in the reversed judgment
Summary of this case from Wright v. LutziOpinion
91CR0038; CA A71393
Argued and submitted May 29, 1992
Convictions affirmed; remanded for resentencing June 24, 1992
Appeal from Circuit Court, Josephine County.
Allan H. Coon, Judge.
Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Charles S. Crookham, Attorney General, Virginia L. Linder, Solicitor General, and James H. Juliussen, Certified Law Student, Salem.
Before Joseph, Chief Judge, and Rossman and De Muniz, Judges.
PER CURIAM
Convictions affirmed; remanded for resentencing.
The state concedes that the trial court erred in ordering defendant to submit to random substance tests at the request of a probation officer without requiring that the officer have reasonable grounds to believe that defendant is then violating the prohibition of alcohol use. State v. Kestner, 109 Or. App. 684, 820 P.2d 824 (1991); State v. Collins, 109 Or. App. 682, 820 P.2d 902 (1991); State v. Hagger, 107 Or. App. 251, 252, 810 P.2d 1356 (1991). We accept the concession.
The parties do not agree about the other issue. Defendant contends that the court imposed consecutive presumptive probation terms, contrary to OAR 253-12-020(3)(b). The state contends that the court placed defendant on probation for a single period of 36 months on the counts on which he was convicted and then ordered him to serve 45 days in jail on Count 1 and 15 days on Count 2 as conditions of probation. On that basis, the state argues that only the periods of incarceration were ordered to be consecutive. Although the state's guess at what the trial court intended is probably correct, the judgment is ambiguous. On remand, the court can establish what it intended.
Convictions affirmed; remanded for resentencing.