
    Submitted on record and briefs August 20,
    convictions affirmed; restitution as condition of probation stricken October 10, 1990
    STATE OF OREGON, Respondent, v. JAMES EDWARD SIMMS, Appellant.
    
    (C88-09-36506; CA A60375)
    797 P2d 1080
    Sally L. Avera, Public Defender, Salem, and Irene B. Taylor, Salem, filed the brief for appellant.
    Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, Ann Kelley, Assistant Attorney General, and Lauri Alsup, Certified Law Student, Salem, filed the brief for respondent.
    Before Joseph, Chief Judge, and Rossman and De Muniz, Judges.
    PER CURIAM
   PER CURIAM

Defendant was indicted with a co-defendant in a 9-count indictment. Only Counts 1 through 6 accused defendant and his co-defendant. The other counts pertained to the co-defendant alone; two of those counts involved the property of Dong Nguyen. Defendant was convicted on Counts 2, 3, 4 and 5; on Count 5, the court imposed a suspended sentence and placed defendant on probation, subject to the condition that he pay restitution for damage to Nguyen’s property.

The state concedes that the trial court erred. Nguyen was not a victim of defendant’s criminal activities, and defendant was not convicted of and did not admit either of the counts that related to Nguyen’s property. Restitution was not authorized. ORS 137.106(1).

Convictions affirmed; restitution as condition of probation stricken.  