State v. Hollingsworth

784 P.2d 1108, 100 Or. App. 62, 1989 Ore. App. LEXIS 2098

• Court: Court of Appeals of Oregon
• Decided: December 28, 1989
• Docket: 88-CR-0438; CA A51231
• Status: Published

Opinion

PER CURIAM

Defendant was found guilty of felony driving while revoked and was placed on probation. ORS 811.182. He was subsequently found in violation of certain conditions of probation but was continued on probation over his objection. He appeals and argues that the court was without authority to do that. See State v. Carmickle, 307 Or 1, 762 P2d 290 (1988); State v. Benway, 97 Or App 685, 776 P2d 880 (1989).

The state argues that defendant’s original election was binding. That argument, although not raised, was implicitly rejected in State v. Benway, supra, in which we held that a criminal defendant’s right to refuse probation applies to a court-ordered continuation of probation.¹

Order continuing probation reversed; remanded for sentencing.

1 We note that the probation hearing took place before the effective date of ORS 137.010(4), which precludes a defendant’s right to refuse probation. The legislative history does not indicate an intent that ORS 137.010(4) apply retroactively. Accordingly, we do not consider the effect of that statute.