State v. Newton , 302 Or. App. 365 ( 2020 )


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  •                                      365
    Submitted January 27; remanded for resentencing, otherwise affirmed
    February 20; petition for review allowed, decision of Court of Appeals reversed,
    judgment of circuit court reversed, and case remanded to the circuit court for
    further proceedings June 4, 2020 (
    366 Or 550
    )
    STATE OF OREGON,
    Plaintiff-Respondent,
    v.
    GREEN NEWTON,
    Defendant-Appellant.
    Washington County Circuit Court
    18CR27428; A168296
    457 P3d 1117
    Janelle F. Wipper, Judge.
    Ernest G. Lannet, Chief Defender, Criminal Appellate
    Section, and Rond Chananudech, Deputy Public Defender,
    Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
    Solicitor General, and Peenesh Shah, Assistant Attorney
    General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Shorr, Judge, and
    James, Judge.
    PER CURIAM
    Remanded for resentencing; otherwise affirmed.
    366                                          State v. Newton
    PER CURIAM
    Defendant was convicted of driving under the influ-
    ence of intoxicants (DUII), ORS 813.010, and unlawful pos-
    session of cocaine, ORS 475.884, and received a probationary
    sentence. On appeal, defendant challenges the trial court’s
    imposition of a special condition of probation that prohibited
    him from possessing or consuming marijuana and required
    that he “not participate in the Oregon Medical Marijuana
    Program.” Defendant argues that that condition of proba-
    tion is improper under ORS 137.542(2) and State v. Bowden,
    
    292 Or App 815
    , 425 P3d 475 (2018) (court lacks discretion
    to impose special condition of probation that runs counter
    to ORS 137.540(1)(b) and ORS 137.542). The state concedes
    the error. We agree and accept the state’s concession. Defen-
    dant also argues that the trial court erred in accepting a
    nonunanimous verdict on both charges. We reject that argu-
    ment without discussion.
    Defendant requests the remedy of remanding the
    case to the trial court with instructions to delete the spe-
    cial condition of probation concerning the Oregon Medical
    Marijuana Program. The state argues that we should not
    limit the scope of our remand for resentencing. We agree
    with the state. See State v. Harper, 
    298 Or App 542
    , 447
    P3d 532 (2019) (remanding for resentencing to allow court
    to resentence in a way that conforms with the law); State v.
    Kilgore, 
    295 Or App 602
    , 435 P3d 817 (2019) (same).
    Remanded for resentencing; otherwise affirmed.
    

Document Info

Docket Number: A168296

Citation Numbers: 302 Or. App. 365

Filed Date: 2/20/2020

Precedential Status: Precedential

Modified Date: 10/10/2024