- Court: Oregon Court of Appeals
- Area(s) of Law: Sentencing
- Date Filed: 10-27-2021
- Case #: A172732
- Judge(s)/Court Below: DeHoog, J. for the Court; DeVore, P.J.; & Sercombe, S.J.
- Full Text Opinion
Defendant plead guilty to private indecency and was sentenced to probation. Defendant argued that the trial court erred in imposing a special condition that it did not announce in open court at sentencing. The State argued Defendant’s appeal is moot because the trial court subsequently entered a judgment finding Defendant in violation of, and continuing, their probation. Imposing conditions of probation in a judgment that have not been announced in open court at sentencing constitutes reversible error generally entitling a Defendant to resentencing. The State argued according to State v. Nguyen, 298 Or App 139, 455 P3d 390 (2019), this case is moot because if the Court reversed and remanded, the new judgment would re-impose the same conditions. However, the State is assuming that the court on remand would be unable to alter the challenged condition on resentencing due to the existence of an unappealed probation violation judgment. That suggests the Defendant would need to appeal both the underlying judgment and the continuing probation violation judgment. Yet, the court’s error solely concerns the original judgment. It is erroneous to assume that a probation violation judgment fully resentences the defendant. Nguyen is plainly wrong and should be overruled. Remanded for resentencing, otherwise affirmed.