State v. Powell

816 P.2d 662, 108 Or. App. 482, 1991 Ore. App. LEXIS 1226

Opinion

PER CURIAM

Defendant was convicted after his guilty plea of theft in the first degree committed before November 1,1989. ORS 164.055. The trial court sentenced him to pay restitution, suspended imposition of sentence, placed him on probation and also sentenced him to serve ten days in the county jail. Although defendant’s assignments of error raise issues that either were not preserved for appeal or that require no discussion, we vacate the sentence and remand for resentencing.

The state correctly points out that the sentence is fatally flawed. The sentencing court lacked authority to order probation and also to impose a sentence. ORS 137.010(7); State v. Vasby, 101 Or App 1, 4, 788 P2d 1024 (1990). Because the trial court purported to sentence defendant to pay restitution and to serve a ten-day jail term, as well as to place him on probation, the sentence must be vacated.

Conviction affirmed; sentence vacated; remanded for resentencing.