State v. Robertson

Full title: STATE OF OREGON, Respondent, v. WILLIAM DENNIS ROBERTSON, Appellant

Court: Oregon Court of Appeals

Date published: Jun 10, 1992

833 P.2d 326 (Or. Ct. App. 1992)

833 P.2d 326

Opinion

T30459; CA A66573

Argued and submitted August 30, 1991 Taken In Banc and resubmitted June 3, 1992

Conviction affirmed; special conditions of probation vacated; remanded for resentencing June 10, 1992

In Banc^_

_ Deits, J., not participating.

Appeal from District Court, Washington County.

Nancy W. Campbell, Judge.

Mary Reese, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.

Ann Kelley, 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.

PER CURIAM

Conviction affirmed; special conditions of probation relating to taking Antabuse and submitting to searches and to urine, blood, breath and polygraph tests vacated; remanded for resentencing.

Warren, J., dissenting.

PER CURIAM

Defendant challenges certain special conditions of probation entered after he pled guilty to a charge of DUII. ORS 813.010. Our review of the trial court's action is limited to whether the dispositions exceed the maximum allowable by law or are cruel and unusual. ORS 138.050; ORS 138.053; State v. Anderson, 113 Or. App. 416, 418, 833 P.2d 321 (1992). We vacate the special conditions of probation and remand for resentencing.

The trial court suspended imposition of sentence and placed defendant on five years' probation. As a condition of probation, defendant was required to take Antabuse, but the written order does not make the condition subject to medical approval, which is required by ORS 137.540(2)(j). In addition, defendant must submit to urine, blood and breath tests and searches, but the order did not include the limitations of ORS 137.540(2)(f), (k) and (m). Also, the order that he take polygraph tests did not list any terms or conditions, as required by ORS 137.540(2)(c).

The state concedes that the special conditions in the written order do not comply with the relevant statutory requirements. We accept the state's concession.

Conviction affirmed; special conditions of probation relating to taking Antabuse and submitting to searches and to urine, blood, breath and polygraph tests are vacated; remanded for resentencing.

WARREN, J., dissenting.

I dissent for the reasons stated in my dissent in State v. Anderson, 113 Or. App. 416, 833 P.2d 321 (1992).

Joseph, C.J., and Richardson, J., join in this dissent.