State v. Kelley ( 2020 )

608
Submitted October 20; remanded for resentencing, otherwise affirmed
November 18, 2020; petition for review denied April 8, 2021 (367 or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL HARVEY KELLEY,
Defendant-Appellant.
Washington County Circuit Court
18CR11491; A169574
476 P3d 540
Andrew Erwin, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as 307 Or App 608 (2020) 609
PER CURIAM
Defendant appeals a judgment of conviction for
driving under the influence of intoxicants, ORS 813.010, and
reckless driving, ORS 811.140. He assigns error to (1) the
denial of his motion to suppress and (2) the trial court’s impo-
sition of a special condition of probation specifying that “[i]f
requested, defendant must submit to field sobriety and/or
intoxilyzer tests.” We reject without further discussion
defendant’s contention that the court erred in denying his
motion to suppress. As for the probation condition, the state
concedes—correctly—that the court erred by imposing that
condition because the court did not first announce that con-
dition in open court. See State v. Anotta, 302 Or App 176,
177, 460 P3d 543, rev den, 366 Or 552 (2020) (trial court
erred by imposing special conditions of probation that it did
not impose in open court). We therefore remand for resen-
tencing. See id. at 178 (remanding for resentencing when
court erred in imposing special conditions of probation that
it did not announce in open court); see also State v. Dennis,
303 Or App 595, 598, 464 P3d 518 (2020) (same).
Remanded for resentencing; otherwise affirmed.