Summary
vacating special probation conditions requiring sex offender evaluation and treatment because "no evidence was presented that defendant acted with a sexual purpose"
Summary of this case from State v. McCollisterOpinion
CR01-0053; A116781.
Submitted on record and briefs October 3, 2003.
Filed: November 13, 2003.
Appeal from Circuit Court, Umatilla County. Ronald J. Pahl, Judge.
Peter A. Ozanne, Executive Director, and Anne Fujita Munsey, Deputy Public Defender, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Assistant Attorney General, filed the brief for respondent.
Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.
PER CURIAM.
Condition of probation requiring defendant to undergo sex offender evaluation and treatment vacated; remanded for resentencing; otherwise affirmed.
Defendant appeals from a judgment that imposed, as a condition of probation, a requirement that he undergo a sex offender evaluation and receive recommended treatment. Defendant argues that that condition of probation was not properly imposed. The state concedes error, and we accept its concession.
Sex offender treatment may be ordered as a general condition of probation if the defendant is under supervision for, or previously was convicted of, "a sex offense under ORS 163.305 to 163.467." ORS 137.540(1)(m). Defendant was not under supervision for, or previously convicted of, a sex offense under the specified statutes. See State v. Flicker, 185 Or. App. 666, 668, 60 P.3d 1155 (2003) (out-of-state convictions for sex offenses do not satisfy the conditions of ORS 137.540(1)(m)).
Sex offender treatment may be ordered as a special condition of probation pursuant to ORS 137.540(2) if it is "reasonably related to the crime of conviction or the needs of the defendant." ORS 137.540(2); see State v. Mack, 156 Or. App. 423, 429, 967 P.2d 516 (1998) (if a defendant is convicted of a crime other than a sexual offense but acted with a sexual purpose, requiring sex offender treatment as a special condition of probation is reasonably related to the crime of conviction). In this case, the crime at issue was not a sexual offense, and no evidence was presented that defendant acted with a sexual purpose.
Condition of probation requiring defendant to undergo sex offender evaluation and treatment vacated; remanded for resentencing; otherwise affirmed.