State v. Allen

851 P.2d 638 (1993) 120 Or. App. 526

STATE of Oregon, Respondent,
v.
Edward Eugene ALLEN, Appellant.

90CR0219, 910691M; CA A70710 (Control), CA A70711.

Court of Appeals of Oregon.

Argued and Submitted August 28, 1992. Decided May 19, 1993. Reconsideration Denied August 18, 1993.

Before ROSSMAN, P.J, and DE MUNIZ and LEESON^[*] JJ.

PER CURIAM.

Defendant appeals from four misdemeanor convictions for issuing false financial statements.^[1] Imposition of sentence was suspended on all four convictions, and defendant was placed on probation. He was ordered to serve jail time as a condition of probation for each conviction.

Two of the convictions were based on misconduct that occurred after November 1, 1989, but before June 10, 1991.^[2] During that time, the statute in effect did not authorize jail time as a condition of probation. State v. Wold, supra n. 2, 105 Or. App. at 160, 803 P.2d 782. In 1991, the legislature amended ORS 137.540(2) to allow jail time as a condition of probation, and made its application retroactive to misdemeanors committed after November 1, 1989. In State v. Harding, 116 Or.App. 29, 840 P.2d 113 (1992), we held that the application of ORS 137.540(2) to offenses that had been committed after November 1, 1989, but before June 10, 1991, the effective date of the statute, violated the prohibition against ex post facto laws. We therefore remand for resentencing on the two convictions for misdemeanors committed after November 1, 1989. We have considered and reject defendant's other assignments of error.

On counts VI and VII in 90CR0219, condition of probation ordering jail time vacated and remanded for resentencing; otherwise affirmed.

NOTES

[*] Leeson, J., vice Buttler, J., retired.

[1] The cases were consolidated for trial.

[2] The other two convictions were on the basis of misconduct that occurred before November 1, 1989. The statute in effect at that time authorized jail time as a condition of probation. See State v. Wold, 105 Or.App. 158, 160, 803 P.2d 782 (1991).