STATE v. NEWTON (2020)

Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010, and unlawful possession of cocaine, ORS 475.884, and received a probationary sentence. On appeal, defendant challenges the trial court’s imposition of a special condition of probation that prohibited him from possessing or consuming marijuana and required that he “not participate in the Oregon Medical Marijuana Program.” Defendant argues that that condition of probation is improper under ORS 137.542(2) and State v. Bowden, 292 Or. App. 815, 425 P.3d 475 (2018) (court lacks discretion to impose special condition of probation that runs counter to ORS 137.540(1)(b) and ORS 137.542). The state concedes the error. We agree and accept the state’s concession. Defendant also argues that the trial court erred in accepting a nonunanimous verdict on both charges. We reject that argument without discussion.

Defendant requests the remedy of remanding the case to the trial court with instructions to delete the special condition of probation concerning the Oregon Medical Marijuana Program. The state argues that we should not limit the scope of our remand for resentencing. We agree with the state. See State v. Harper, 298 Or. App. 542, 447 P.3d 532 (2019) (remanding for resentencing to allow court to resentence in a way that conforms with the law); State v. Kilgore, 295 Or. App. 602, 435 P.3d 817 (2019) (same).

Remanded for resentencing; otherwise affirmed.

PER CURIAM