State v. Ballew

722 P.2d 60, 80 Or. App. 457, 1986 Ore. App. LEXIS 3142

Opinion

PER CURIAM

Defendant was convicted of driving under the influence of intoxicants (DUII). His sentence was reversed and the case was remanded for resentencing in State v. Ballew, 70 Or App 617, 689 P2d 1330 (1984), because the trial court imposed costs and fines as conditions of probation without first considering defendant’s ability to pay. On remand, defendant requested assistance of counsel. The trial judge denied his request and imposed the same sentence, again without inquiring into defendant’s ability to pay the costs and fines. The state confesses error in the trial judge’s failure to appoint an attorney to assist defendant at resentencing. See State ex rel Russell v. Jones, 293 Or 312, 315, 647 P2d 904 (1982). The state also confesses error in the trial judge’s failure, as at defendant’s first sentencing, to inquire into defendant’s present and future ability to pay the costs and fines imposed. State v. Ballew, supra.

Reversed and remanded for appointment of counsel and for resentencing.