Opinion
89CR0771; CA A62371
Argued and submitted December 21, 1990.
Conviction affirmed; remanded for resentencing February 27, 1991
Appeal from Circuit Court, Coos County, Richard L. Barron, Judge.
Mary M. Reese, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Vera Langer, Assistant Attorney General, Salem.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
RIGGS, J.
Conviction affirmed; remanded for resentencing.
Defendant was convicted of two counts of theft in the first degree. ORS 164.055. At sentencing, the trial court ordered him to pay costs, attorney fees and restitution and to sell his car to satisfy those obligations. He did not object to the court's order. We affirm the conviction but remand for resentencing.
Defendant argues that there is no statutory authority for the trial court to require him to sell assets to meet the financial obligations imposed by the judgment. The state concedes that the trial court erred in ordering defendant to sell his car, because the car had not been used in any manner related to the offense for which he was convicted. See State v. Gammond, 75 Or. App. 27, 29, 704 P.2d 1154 (1985). However, it argues that we should not consider defendant's contentions on appeal, because he failed to preserve the error. State v. Carpenter, 101 Or. App. 489, 791 P.2d 145, rev den 310 Or. 393 (1990). Defendant responds that we can consider the error, because the trial court's lack of authority to make the order is apparent on the face of the record. ORAP 5.45(2); State v. Brown, 310 Or. 347, 800 P.2d 259 (1990); State v. Wills, 93 Or. App. 322, 323, 761 P.2d 1365 (1988), rev den 307 Or. 611 (1989); State v. Braughton, 28 Or. App. 891, 893, 561 P.2d 1040 (1977).
We agree that the trial court had no authority to order defendant to sell his car. See State v. Gammond, supra. That error is apparent on the face of the record and needs to be corrected. State v. Brown, supra. The state agrees that, if we reach the issue, the case should be remanded for resentencing.
Conviction affirmed; remanded for resentencing.