Argued and submitted on April 25, 2013.
Douglas County Circuit Court, No. 10CR2589CT William A. Marshall, Judge.
On respondent's notice of probable mootness and motion to dismiss filed April 2, 2013, and appellant's response to notice of probable mootness and motion to dismiss filed April 10, 2013.
Lindsey J. Burrows, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Justice J. Rillera, Assistant Attorney General, argued the cause for respondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Duncan, Judge, and Nakamoto, Judge.
SCHUMAN, P. J.
Defendant appeals from a judgment of punitive contempt based on a finding that he voluntarily failed to comply with the terms of a 2010 sentence that ordered him to perform 10 days of community service. Specifically, the contempt court found that defendant had been assigned to perform his 10 days of service with a work crew and that defendant had refused to do so. On appeal, defendant argues that the contempt court erred because, while the 2010 sentence required him to perform some form of community service, which he was willing and able to do, it also exempted him from being assigned to a work crew, which he was not. The state responds that a work crew is one form of community service, and that, by requiring 10 days of community service, the trial court gave officials the discretion to specify assignment to a work crew. Thus, according to the state, by refusing to accept his assignment to a work crew, defendant also refused to do community service. Alternatively, the state contends that the contempt court found as fact that defendant refused to perform not only work crew, but all forms of community service. For the reasons that follow, we conclude, first, that the contempt court erred in concluding that the trial court's sentence encompassed a requirement that defendant perform work crew; second, that evidence in the record could support a finding that defendant refused to perform any community service; but, third, that the contempt court never reached that question. We therefore reverse and remand for a new trial.
We state the facts in the light most favorable to the state. State v. Hall, 327 Or 568, 570, 966 P.2d 208 (1998). In December 2010, defendant was sentenced to 10 days of community service. In imposing that sentence, the court used a standardized check-the-box community service judgment form. That form read:
"The defendant in this case has been convicted of an offense and ordered to successfully complete:
" ___Community Service as an alternative to payment of a fine or jail sentence.
" ___Community Service as an additional condition of your sentence.
" ___Work Crew as an alternative to payment of a fine or jail sentence.
" ___Work Crew as an additional condition of your sentence." Further down the page, the form instructs, "[R]eport within 14 days to the Douglas County Work Crew Manager, Room 213, Courthouse. Defendant shall complete ___ days of work crew/community service as scheduled by the Work Crew Manager."
In this case, the trial court placed an "X" next to the "Community Service as an additional condition of your sentence" option. The other options were left blank. The court also marked the instructions further down the page by writing the number "10" in the space provided before "days of work crew/community service." The court also crossed out the words "work crew, " leaving the words "community service" unaltered, so that the sentence read, "Defendant shall ...