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State v. Davis

Court of Appeals of Oregon

July 23, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
BILLY DALE DAVIS, Defendant-Appellant

Submitted June 24, 2014

Douglas County Circuit Court 12CR0938FE. Frances Elaine Burge, Judge.

Peter Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Sarah M. Villanueva, Assistant Attorney General, filed the brief for respondent.

Before Hadlock, Presiding Judge, and Tookey, Judge, and De Muniz, Senior Judge.

OPINION

[264 Or.App. 423] PER CURIAM

Defendant appeals a judgment revoking his probation. The trial court determined that defendant had violated his probation by changing his residence without permission and by associating with a known drug user. On appeal, defendant asserts that there was legally insufficient evidence of either probation violation. See State v. Perez, 122 Or.App. 385, 388, 857 P.2d 893 (1993) (court reviews a trial court's decision to revoke probation for abuse of discretion); State v. Winters, 44 Or.App. 9, 12, 605 P.2d 293 (1980) (a trial court abuses its discretion when it revokes probation based on insufficient evidence). We reject without discussion defendant's contention regarding the change of residence. With respect to the other basis for the probation revocation, the state concedes that there was insufficient evidence that defendant had violated his probation by associating with a known drug user. Accordingly, the state asserts " this court should vacate the judgment and remand for further proceedings." We agree, and accept the state's concession. See State v. Milnes, 256 Or.App. 701, 710, 301 P.3d 966 (2013) (reversing and remanding probation revocation judgment where one ground for revocation was incorrect and the trial court had not indicated whether it would have revoked the defendant's probation in the absence of that ground).

Vacated and remanded.


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