Opinion
88-1142; CA A61893
Argued and submitted April 25, 1990
Conviction affirmed and sentence modified June 6, 1990
Appeal from Circuit Court, Tillamook County.
Delbert B. Mayer, Judge.
Sally L. Avera, Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Salem.
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 Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Conviction affirmed; sentence modified by deleting provision that it be served consecutively to sentence defendant is presently serving.
Defendant was convicted of possession of a controlled substance. The court sentenced him to six months incarceration, execution of the sentence was suspended and he was placed on three years probation. The probation was subsequently revoked and the suspended sentence was ordered executed. The court also ordered that the sentence run consecutively to a sentence defendant was already serving.
Defendant contends that the court has no authority to modify a sentence imposed and suspended by ordering that it be served consecutively. The state concedes error, and we agree. State v. Harper, 86 Or. App. 11, 738 P.2d 214 (1987).
Conviction affirmed; sentence modified by deleting provision that it be served consecutively to sentence defendant is presently serving.