State v. Johnson , 96 Or. App. 641 ( 1989 )

PER CURIAM

The sole issue on appeal is the validity of a part of defendant’s sentence for criminal mischief in the third degree, ORS 164.345, and disorderly conduct, ORS 166.025, following revocation of probation. In addition to sentencing him to a period of incarceration and imposing a fine, the trial court ordered: “(2) Defendant shall be rereferred to Lane County Mental Health for evaluation [and] treatment.” Defendant argues, the state concedes, and we agree that that portion of the sentence is without statutory authority and, therefore, “exceeds the maximum sentence allowable by law.” ORS 138.050.

The state urges us to affirm nonetheless and to treat the mental health referral “as the sentencing judge’s nonbinding recommendation that defendant submit to mental health treatment.” We decline the invitation; there is no body to whom the “recommendation” can be made. Cf. State v. George, 90 Or App 496, 498, 752 P2d 1265 (1988) (trial court could make non-binding recommendation that Board of Parole order restitution as condition of parole).

Paragraph (2) of judgment vacated; otherwise affirmed.