State v. Bartholomew

789 P.2d 20, 101 Or. App. 243, 1990 Ore. App. LEXIS 325

• Court: Court of Appeals of Oregon
• Decided: April 4, 1990
• Docket: C88-01-30343; CA A60660
• Status: Published

Opinion

PER CURIAM

Defendant pled guilty to two counts of forgery in the first degree. The trial court sentenced her on count 1 to four years’ imprisonment with a 14-month minimum. On count 2, it suspended imposition of sentence and placed her on five years’ probation, notwithstanding her request that a sentence be imposed. Defendant challenges that portion of the judgment, arguing that, under State v. Carmickle, 307 Or 1, 762 P2d 290 (1988), the court erred in denying her request to be sentenced on both counts.

The state concedes that defendant had a right to refuse probation and to be sentenced.¹ Accordingly, we vacate the suspension of imposition of sentence on count 2 and remand for imposition of sentence.²

Portion of judgment suspending imposition of sentence vacated; remanded for imposition of sentence on count 2; judgment affirmed otherwise.

1 The legislature effectively overruled State v. Carmickle, supra, to permit courts to suspend imposition or execution of sentence and place a defendant on probation, notwithstanding any objections that he might have. Or Laws 1989, ch 849, § 1 (now ORS 137.010(5)). However, that amendment had not taken effect when defendant was sentenced.

2 Defendant does not challenge the judgment on count 1.