Opinion
91NB-1730; CA A74961
Argued and submitted June 30, convictions affirmed; remanded for resentencing August 18, 1993
Appeal from District Court, Coos County.
Charles H. Reeves, Judge.
James N. Varner, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Amy E. Alpaugh, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Warren, Presiding Judge, and Edmonds and Durham, Judges.
PER CURIAM
Convictions affirmed; remanded for resentencing.
Defendant was convicted of three misdemeanors: menacing, ORS 163.190, assault in the fourth degree, ORS 163.160, and harassment. ORS 166.065. We affirm the convictions but remand for resentencing.
Defendant first argues that the trial court abused its discretion in admitting evidence that defendant had assaulted the victim on previous occasions. Having considered the record, we conclude that the trial court did not err. State v. Johns, 301 Or. 535, 558, 725 P.2d 312 (1986).
Defendant also argues that the trial court erred in sentencing him and at the same time placing him on probation. The trial court sentenced defendant to 360 days in jail, with 180 days suspended, and placed him on three-years probation. The state concedes, and we agree, that that was error. State v. McMellon, 110 Or. App. 441, 823 P.2d 996 (1992); State v. Vasby, 101 Or. App. 1, 788 P.2d 1024 (1990).
Convictions affirmed; remanded for resentencing.