State v. Leen ( 1992 )

PER CURIAM

The state concedes that the trial court erred in ordering defendant to submit to random substance tests at the request of a probation officer without requiring that the officer have reasonable grounds to believe that defendant is then violating the prohibition of alcohol use. State v. Kestner, 109 Or App 684, 820 P2d 824 (1991); State v. Collins, 109 Or App 682, 820 P2d 902 (1991); State v. Hagger, 107 Or App 251, 252, 810 P2d 1356 (1991). We accept the concession.

The parties do not agree about the other issue. Defendant contends that the court imposed consecutive presumptive probation terms, contrary to OAR 253-12-020(3) (b). The state contends that the court placed defendant on probation for a single period of 36 months on the counts on which he was convicted and then ordered him to serve 45 days in jail on Count 1 and 15 days on Count 2 as conditions of probation. On that basis, the state argues that only the periods of incarceration were ordered to be consecutive. Although the state’s guess at what the trial court intended is probably correct, the judgment is ambiguous. On remand, the court can establish what it intended.

Convictions affirmed; remanded for resentencing.