811 P.2d 927 | Or. Ct. App. | 1991
After defendant’s conviction for possession of a controlled substance, ORS 475.992(4), he was placed on probation with a special condition that he “successfully complete a substance abuse program, including any of the usual surveillance: urinalysis, polygraph testing, blood testing, consent to search of your residence, your person, your vehicle.” (Emphasis supplied.) The judgment stated that he must “[s]ubmit person, residence, vehicle and property to search by [a] probation officer.” Defendant argues that the condition of probation was improper, because it required him to submit without limitation to searches by a probation officer.
We accept the state’s concession that the judgment does not conform to ORS 137.540(2)(m), which provides that a court may impose a condition of probation that a defendant submit to a “search by a probation officer having reasonable grounds to believe such search will disclose evidence of a probation violation.” See also State v. Schwab, 95 Or App 593, 596, 771 P2d 277 (1989). The trial court erred in imposing the unlawful condition of probation.
Conviction affirmed; condition of probation requiring defendant to submit to searches vacated; remanded for resentencing.
This error could have easily been corrected through the joint cooperation of the parties and the trial judge, without the time and expense involved in an appeal.
