313 Or. App. 609 - State v. Phillips

                                    609

Submitted July 2; remanded for resentencing, otherwise affirmed July 28, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               DESTINY ANNETTE PHILLIPS,
                    Defendant-Appellant.
               Washington County Circuit Court
                    19CR08394; A171863

491 P3d 834

Eric Butterfield, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
610 State v. Phillips

PER CURIAM
Defendant appeals a judgment convicting her of
first-degree theft and imposing conditions of probation, as
well as a supplemental judgment imposing restitution. She
argues that the trial court erred in including in the judgment of conviction a condition of probation indicating that
her failure to appear at a restitution hearing on a specified date would result in the waiver of her right to object
to the imposition, amount, or distribution of restitution.
That condition of probation had not been announced in open
court. Defendant further argues that the court erred in subsequently imposing restitution in her absence—on a date
other than the one specified in the judgment of conviction—
because she did not validly waive her right to a hearing.
She further argues that the court erred in imposing restitution in the absence of any evidence. The state concedes
that the court erred in imposing the condition of probation
because it had not been announced in open court, and that,
under the circumstances, the court erred in imposing restitution in defendant’s absence. We agree and accept the
state’s concession. See State v. Keen,

304 Or App 89

466 P3d 95

 (2020) (court erred in including probation condition in
judgment that was not announced in open court); State v.
Sidener,

308 Or App 155

478 P3d 605

 (2020) (court erred in
imposing restitution in the defendant’s absence under similar circumstances).
        Remanded for resentencing; otherwise affirmed.