Barnett v. State of Oregon

*586 PER CURIAM

Plaintiff in this post-conviction proceeding appeals the trial court’s judgment denying him relief from his conviction for carrying a blackjack. ORS 166.510. The state confesses that ORS 166.510 is unconstitutional insofar as it prohibits the possession of a blackjack and that the trial court erred in holding otherwise. We agree. State v. Delgado, 298 Or 395, 692 P2d 610 (1984). The trial court should have “expunged” plaintiffs conviction as he requested.

Plaintiff also assigns as error the trial court’s refusal to award him the $1,341 in restitution he paid as part of his sentence 1 and $5,000 in general damages. Although ORS 138.520 allows a post-conviction court to grant “such other relief as may be proper and just,” that relief is limited to matters similar to release, new trial and modification of sentence, which the statute specifically allows the court to grant. Defendant points to no statute, and we are aware of none, which authorizes a court in a post-conviction proceeding to award money damages or to require the state to repay to plaintiff the restitution that he paid for the benefit of a private party. 2

Reversed and remanded with instructions to set aside plaintiffs conviction.