¶1Defendant appeals his conviction for theft in the second degree. ORS 164.045. He contends that the trial court erred by denying his motion for mistrial and by sentencing him to jail as a condition of probation under ORS 137.540(2). We affirm the conviction but remand for resentencing.
¶2In the first assignment, defendant argues that a mistrial was required because the prosecutor commented on his failure to explain his actions when he was apprehended by the owner of the property that he had stolen. Defendant objected to the prosecutor’s argument and the objection was sustained. Defendant did not move for mistrial until after the jury had been instructed and had begun its deliberations. The court denied the motion, in part because it was untimely.
¶3A motion for mistrial must be timely in order to preserve the error. State v. Walton, 311 Or 223, 809 P2d 81 (1991); State v. Montez, 309 Or 564, 789 P2d 1352 (1990); State v. Shafer, 222 Or 230, 351 P2d 941 (1960). The motion is timely if it is made at a time when the court has the opportunity to assess any curative action. State v. Shafer, supra.Defendant’s motion was not timely and he has not preserved the claim of error.
¶4In his second assignment, defendant argues that the court erred by applying ORS 137.540(2) retroactively to impose a jail sentence as a condition of probation. He is correct. State v. Couraud, 118 Or App 550, 848 P2d 628 (1993); State v. Harding, 116 Or App 29, 840 P2d 113 (1992).
¶5Conviction affirmed; remanded for resentencing.