State v. Ray

598 P.2d 1293 (1979)

STATE of Oregon, Respondent, v. Thomas Clayton RAY, Appellant.

No. 37098; CA 13006.

Court of Appeals of Oregon.

Argued and Submitted June 21, 1979.

Decided August 27, 1979.

David E. Groom, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Melinda L. Bruce, Salem, argued the cause for respondent. With her on the brief was James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C.J., and LEE, GILLETTE and CAMPBELL, JJ.

GILLETTE, Judge.

Defendant pled guilty in July, 1976, to a charge of burglary in the second degree. He was placed on three years' probation. In December, 1978, defendant's probation was revoked after a show cause hearing. At the hearing, the state offered evidence *1294 of other, later criminal activity by defendant. The evidence had been seized pursuant to a warrant which the state concedes was invalid. Defendant's motion to suppress that evidence was denied, and he appeals.

Since defendant filed his appeal, the Oregon Supreme Court has decided State v. Nettles, 287 Or. 131, 597 P.2d 1243 (1979). The court there held that, at least absent special circumstances not present in that case or this one, evidence seized in violation of a probationer's constitutional rights could nonetheless be used in probation revocation proceedings. Nettles is in point here. There was no error.

Defendant's second assignment relates to the trial court's failure to order a presentence investigation prior to sentencing. The state concedes error. See State v. Gale, 35 Or. App. 3, 580 P.2d 1036 (1978).

Reversed and remanded for resentencing.