Opinion
10 90 09282; CA A69507
Argued and submitted May 29, 1992
Remanded for resentencing in part; otherwise affirmed June 24, 1992
Appeal from Circuit Court, Lane County.
F. Gordon Cottrell, Judge.
J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Charles S. Crookham, Attorney General, Virginia L. Linder, Solicitor General, and James H. Juliussen, Certified Law Student, Salem.
Before Joseph, Chief Judge, and Rossman and De Muniz, Judges.
PER CURIAM
Remanded for resentencing on conviction for theft in the third degree; otherwise affirmed.
Defendant was convicted on 5 counts of an indictment: burglary in the first degree with a deadly weapon, ORS 164.225; criminal mischief in the second degree, ORS 164.354; menacing, ORS 163.190; carrying a dangerous weapon with intent to use, ORS 166.220; and theft in the third degree, ORS 164.043. The court imposed a total of 60 months imprisonment on the first 4 counts. Defendant acknowledges that the sentences are within the maximum allowed by law but contends that they constitute cruel and unusual punishment. We have no authority to review a presumptive sentence. State v. Cook, 108 Or. App. 576, 580, 816 P.2d 697 (1991), rev den 312 Or. 588 (1992).
The state concedes that the court erred in sentencing defendant to a jail term of 6 months on count 5. We accept the concession. Theft in the third degree is a class C misdemeanor, for which the maximum allowable term of imprisonment is 30 days. ORS 161.615.
Remanded for resentencing on conviction for theft in the third degree; otherwise affirmed.