FILED: November 19, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CARLOS FLORES,

Defendant-Appellant.

Marion County Circuit Court
05C50884; A130805

Terry Ann Leggert, Judge.

Submitted on October 03, 2008.

Peter Gartlan, Chief Defender, Legal Services Division, and Susan F. Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Michael R. Washington, Senior Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Wollheim, Judge, and Sercombe, Judge.

PER CURIAM

Remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant pleaded guilty to delivery of a controlled substance to a minor, and the trial court ordered defendant to pay $1,157.73 in restitution for a sexual abuse examination of the victim.  The sole issue on appeal is whether the trial court erred by imposing restitution for the examination.  Defendant argues that the sexual abuse examination did not arise from criminal activity that he admitted committing or for which he was convicted, and the state concedes that the trial court erred in that regard.  See State v. Seggerman, 167 Or App 140, 145, 3 P3d 168 (2000) ("[A] defendant cannot be required to pay restitution for pecuniary damages arising out of criminal activity for which he was not convicted or which he did not admit having committed.").              We agree and accept the state's concession.

Remanded for resentencing; otherwise affirmed.


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