Opinion
8210 2424; CA A27236
Argued and submitted August 4, 1983
Vacated, remanded for resentencing August 24, 1983 Reconsideration denied October 14, 1983 Petition for review allowed November 8, 1983 ( 296 Or. 56) See 297 Or. 248, 683 P.2d 1368 (1984)
Appeal from Circuit Court, Linn County.
James Goode, Judge.
Relan Colley, Corvallis, argued the cause for appellant. With him on the brief was Colley Colley, Corvallis.
Sally Leisure, Special Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Gillette, Presiding Judge, and Warden and Young, Judges.
PER CURIAM.
Obligation to pay restitution and attorney fee vacated; remanded for resentencing.
Defendant pleaded guilty to two counts of criminal mischief. He assigns error to the trial court's subsequent refusal to permit him to withdraw his guilty pleas. This court has no authority to consider defendant's contentions in this regard on direct appeal. ORS 138.050; State v. Clevenger, 64 Or. App. 183, 667 P.2d 9 (1983); see also State v. Lugo, 48 Or. App. 919, 618 P.2d 986 (1980); State v. Slopak, 3 Or. App. 532, 475 P.2d 421 (1970); but see State v. Cornelius, 249 Or. 454, 438 P.2d 1020 (1968). Defendant's remedy, if any, lies in post-conviction relief.
Defendant contends, in the alternative, that the trial court erred in imposing requirements of restitution and repayment of the cost of court-appointed counsel, without determining defendant's present or future ability to pay. The state concedes that the record in this case is not adequate to support a finding that defendant is or will be able to pay restitution and costs. ORS 137.106(2)(a)(b); ORS 161.665(2); see State v. Smith, 60 Or. App. 139, 652 P.2d 882 (1982).
The part of the judgment imposing on defendant the obligation to pay restitution and attorney fees is vacated, and the case is remanded for resentencing.