Upon being convicted of burglary, the defendant was sentenced to three years’ imprisonment and, pursuant to ORS 137.106, he was ordered to pay restitution to the county for the attorney fees and to the victim. The burglary was committed prior to the effective date of that statute, but the sentence was imposed subsequent to the effective date.
The Court of Appeals has held, and we agree, that a defendant is subject to no greater penalty than that which was in effect upon the date of the commission of the crime. It has applied the rule in cases involving restitution as a condition of probation under ORS 161.675 and 144.275, State v. Harvey, 35 Or App 719, 582 P2d 476 (1978), and State v. Johnson, 39 Or App 711, 593 P2d 1216 (1979). The rule is equally
applicable to ORS 137.106. Nevertheless, the Court of Appeals affirmed this judgment without opinion. That decision was erroneous because the trial court imposed a sentence which was in excess of its authority. Therefore, the entire sentence must be vacated and a new sentence imposed.
Petition for review allowed. Reversed and remanded for resentencing.