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State v. Fryer

Court of Appeals of Oregon

January 9, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
NATE M. FRYER, Defendant-Appellant.

          Submitted October 5, 2018.

          Washington County Circuit Court 16CR75617; Suzanne Upton, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Remanded for resentencing; otherwise affirmed.

         [295 Or.App. 663] PER CURIAM

         After pleading guilty, defendant was convicted of one count of misdemeanor driving under the influence of intoxicants, ORS 813.010(4), and sentenced to two years' probation, with general and special probation conditions. He appeals the judgment of conviction, assigning error to the trial court's imposition of a special condition of probation, first appearing in the judgment, that "prohibited [him] from possessing or consuming marijuana and * * * participating] in the Oregon Medical Marijuana Program [OMMP]."[1] He contends that, under ORS 137.542 (2), [2] the court "lacked the authority to interfere with [his] ability to participate in the OMMP," and he requests resentencing.[3] The state concedes that the court erred and further agrees that resentencing is the correct disposition.[4] We agree with the parties to the extent that, if defendant holds a medical marijuana registry identification card, the special condition as imposed is inconsistent with ORS 137.542(2). However, the record does not establish whether defendant is, indeed, a medical [295 Or.App. 664] marijuana cardholder. Because defendant did not have the opportunity to address that question before the judgment was entered, we reverse and remand for the court to determine whether ORS 137.542(2) applies in this case and, if so, to modify the special condition to conform with the statute. State v. Kilgore, 295 Or.App. 602, ___P.3d ___(2019).[5]

         Remanded for resentencing; otherwise affirmed.

---------

Notes:

[1] In that circumstance, preservation is not required. State v. Lewis, 236 Or.App. 49, 52, 234 P.3d 152, rev den, 349 Or. 172 (2010).

[2] ORS 137.542(2) provides:

"Notwithstanding ORS 137.540, the conditions of supervision of a person who holds a registry identification card and is sentenced to probation related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of supervision of a ...

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