State v. Smith

652 P.2d 882 (1982) 60 Or.App. 139

STATE of Oregon, Respondent,
v.
Bobby Joe SMITH, Appellant.

No. 81-1899; CA A23916.

Court of Appeals of Oregon.

Submitted on Record and Briefs September 2, 1982. Decided October 27, 1982.

Ronald K. Cox, Asst. Public Defender for Coos County, filed the brief for appellant.

Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and Thomas H. Denney, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

YOUNG, Judge.

Defendant appeals his conviction for second degree burglary. We address only the third assignment of error.^[1]

Defendant was ordered to pay $40 restitution to the store owner, whose door he damaged and from whom he stole three jugs of wine, and to pay costs of $270 for court-appointed attorney fees. Defendant's presentence report indicates that he is "deficient in employment skills, reading and writing ability, and any other applicable skills that could make him a competitor on today's job market." He was 21 at the time of sentencing. He had dropped out of high school. He earns a $106 per month salary from the National Guard. He pays $50 per month rent and owes $1,200 to an insurance company.

The record fails to demonstrate that the trial court took into account defendant's financial resources and the burden that payment of restitution, ORS 137.106(2), and costs, ORS 161.665(2), would impose. In the absence of appropriate findings, that portion of the judgment imposing restitution and costs must be vacated. State v. Barnes, 58 Or. App. 516, 648 P.2d 1306 (1982); State v. Martin, 56 Or. App. 639, 642 P.2d 1196 (1982); State v. Normile, 52 Or. App. 33, 627 P.2d 506 (1981).

That portion of the judgment imposing restitution and costs is vacated; remanded for resentencing.

NOTES

[1] As to the first assignment of error, defendant's motion to suppress his admissions was properly denied. The police had reasonable suspicion to stop and inquire, ORS 131.615, and probable cause to arrest. ORS 133.310. State v. Charmley, 53 Or. App. 225, 227-29, 631 P.2d 795 (1981); State v. Schedler, 47 Or. App. 181, 614 P.2d 591 (1980). The trial court found that defendant understood the Miranda warnings. We are bound by that determination. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

The second assignment of error questions the propriety of a condition of probation that requires defendant to submit to warrantless searches of his person, residence and vehicle by his probation officer. The condition is reasonably related to the objectives of defendant's probation in view of his abuse of alcohol and occasional drug use. ORS 137.540(2)(L). State v. Age, 38 Or. App. 501, 510, 590 P.2d 759 (1979).