State v. Ray

598 P.2d 1293, 41 Or. App. 763, 1979 Ore. App. LEXIS 3172

Opinion

GILLETTE, J.

Defendant pled guilty in July, 1976, to a charge of burglary in the second degree. He was placed on three years’ probation. In December, 1978, defendant’s probation was revoked after a show cause hearing. At the hearing, the state offered evidence of other, later criminal activity by defendant. The evidence had been seized pursuant to a warrant which the state concedes was invalid. Defendant’s motion to suppress that evidence was denied, and he appeals.

Since defendant filed his appeal, the Oregon Supreme Court has decided State v Nettles, 37 Or 511, 588 P2d 688 (1979). The court there held that, at least absent special circumstances not present in that case or this one, evidence seized in violation of a probationer’s constitutional rights could nonetheless be used in probation revocation proceedings. Nettles is in point here. There was no error.

Defendant’s second assignment relates to the trial court’s failure to order a presentence investigation prior to sentencing. The state concedes error. See State v. Gale, 35 Or App 3, 580 P2d 1036 (1978).

Reversed and remanded for resentencing.