Court of Appeals of Oregon, 2014

State v. Davis

State v. Davis
Court of Appeals of Oregon · Decided July 23, 2014 · Hadlock, Muniz, Tookey
264 Or. App. 422; 332 P.3d 348; 2014 WL 3661137; 2014 Ore. App. LEXIS 1000

State v. Davis

Opinion of the Court

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 P2d 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 P2d 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 P3d 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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