Opinion
90051007; CA A68579
Submitted on appellant's petition for reconsideration filed July 21, 1992
And on respondent's petition for reconsideration filed September 18, 1992 Appellant's petition for reconsideration denied, respondent's petition for reconsideration allowed, opinion ( 114 Or. App. 17, 834 P.2d 458) modified and adhered to as modified December 30, 1992 Appellant's petition for review denied February 23, 1993 ( 315 Or. 443) Respondent's petition for review allowed February 23, 1993 ( 315 Or. 442) See later issue Oregon Reports
Appeal from Circuit Court, Linn County.
Jackson L. Frost, Judge.
Sally L. Avera, Public Defender, and Eric R. Johansen, Deputy Public Defender, Salem, for appellant's petition.
Charles S. Crookham, Attorney General, Virginia L. Linder, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, Salem, for respondent's petition.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Appellant's petition for reconsideration denied; respondent's petition for reconsideration allowed; opinion modified and adhered to as modified.
Both parties petition for review of our opinion. 114 Or. App. 17, 834 P.2d 458 (1992). Treating the petitions as ones for reconsideration, ORAP 9.15(1), we deny defendant's and grant the state's. Defendant had been sentenced to life imprisonment, pursuant to ORS 163.115(3)(a), and to 121 months under the guidelines. We held that it was error to impose life imprisonment and remanded for resentencing.
In State v. Morgan, 116 Or. App. 338, 345, 842 P.2d 406 (1992), we said:
"In State v. Bellek, supra, we held that ORS 137.637 requires the court to impose at least 121 months in prison under the guidelines. On further analysis, we are unable to reconcile the provisions of ORS 163.115(3) with the guidelines rules and the statutes. ORS 137.637 does not control ORS 163.115(3)(b) if it does not control ORS 163.115(3)(c). We conclude that ORS 163.115(3) has been superseded in its entirety by the guidelines. See State v. Shumway, 291 Or. 153, 630 P.2d 796 (1981)."
We modify our opinion, consistently with State v. Morgan, supra, and adhere to it as modified. However, that modification does not require resentencing on the 121-month term, which is within the presumptive guidelines sentence.
Appellant's petition for reconsideration denied; respondent's petition for reconsideration allowed; opinion modified and adhered to as modified.