State v. Elwood , 64 Or. App. 422 ( 1983 )

PER CURIAM

Defendant pleaded guilty to two counts of criminal mischief. He assigns error to the trial court’s subsequent refusal to permit him to withdraw his guilty pleas. This court has no authority to consider defendant’s contentions in this regard on direct appeal. ORS 138.050; State v. Clevenger, 64 Or App 183, 667 P2d 9 (1983); see also State v. Lugo, 48 Or App 919, 618 P2d 986 (1980); State v. Slopak, 3 Or App 532, 475 P2d 421 (1970); but see State v. Cornelius, 249 Or 454, 438 P2d 1020 (1968). Defendant’s remedy, if any, lies in post-conviction relief.

Defendant contends, in the alternative, that the trial court erred in imposing requirements of restitution and repayment of the cost of court-appointed counsel, without determining defendant’s present or future ability to pay. The state concedes that the record in this case is not adequate to support a finding that defendant is or will be able to pay restitution and costs. ORS 137.106(2)(a)(b); ORS 161.665(2); see State v. Smith, 60 Or App 139, 652 P2d 882 (1982).

The part of the judgment imposing on defendant the obligation to pay restitution and attorney fees is vacated, and the case is remanded for resentencing.