State v. Hampton
772 P.2d 449
Or. Ct. App.
1989
Check Treatment
PER CURIAM

Defendant appeals his conviction for assault in the fourth degree and challenges only a condition of probation requiring that he pay $998 in restitution to the victim.1 Defendant was originally charged with assault in the second degree for hitting the victim in the mouth with a beer bottle and for kicking him in the head. He pleaded guilty to the lesser included offense of assault in the fourth degree, ORS 163.160, but admitted only that he kicked the victim in the head. The court suspended imposition of sentence and placed him on probation for four years.

Defendant disputes the requirement that he pay restitution for the costs incurred in repairing the victim’s teeth that were knocked out when the victim was struck with the beer bottle. We agree with the state’s concession that the court erred in imposing that condition, because defendant’s criminal liability for knocking out the victim’s two front teeth was never established. ORS 137.106; State v. Armstrong, 44 Or App 219, 222-23, 605 P2d 736, rev den 289 Or 45 (1980).

Defendant’s remaining argument does not merit discussion.

Probation condition requiring payment of restitution vacated; otherwise affirmed.

We can review the condition of probation under ORS 138.040, even though defendant pleaded guilty, because the court did not sentence him. State v. Donovan, 307 Or 461, 770 P2d 581 (1989).