State v. Everitt

269 P.3d 117, 247 Or. App. 619, 2012 Ore. App. LEXIS 4

• Court: Court of Appeals of Oregon
• Decided: January 5, 2012
• Docket: 0909240CR; A144850
• Status: Published

Opinion

PER CURIAM

Defendant appeals a judgment of conviction for one count each of menacing, ORS 163.190, harassment, ORS 166.065, and disorderly conduct in the second degree, ORS 166.025. He assigns error to the denial of his motions for judgment of acquittal on each of those counts; we reject those assignments without discussion. Defendant also challenges the imposition of community service as a condition of probation, arguing that the court lacked authority to impose that condition without his consent. ORS 137.128(1) provides, in part: “A judge may sentence an offender to community service either as an alternative to incarceration or fine or probation, or as a condition of probation. Prior to such order of community service the offender must consent to donate labor for the welfare of the public.” The state concedes that defendant did not consent to donate labor for the welfare of the public and that the court therefore erred in imposing that condition of probation. We accept the state’s concession and remand the case for resentencing.

Remanded for resentencing; otherwise affirmed.