State v. Ellis

830 P.2d 637, 113 Or. App. 380, 1992 Ore. App. LEXIS 1120

Opinion

PER CURIAM

Defendant appeals his conviction for menacing, a misdemeanor. ORS 163.190. He contends that the court erred by admitting certain evidence and by imposing a jail sentence as a condition of probation. The court did not err by admitting the challenged testimony; we address only the sentence.

The court imposed two years’ probation to the court and 60 days in jail as a condition of probation. The prosecutor informed the court that, under former ORS 137.540(2) and State v. Wold, 105 Or App 158, 803 P2d 782 (1991), it could not impose a jail term as a condition of probation.¹ The court concluded that, if it did not impose formal probation, it could impose a jail term. The state concedes, and we accept the concession, that Wold appliesto informal probation as well as to formal probation and that the sentence was unlawful.

Conviction affirmed; remanded for resentencing.

Footnotes

1

After the sentencing here, ORS 137.540(2) was amended. 1991 Or Laws, ch 196.