Opinion
10-91-09590; CA A73889
Submitted on record and briefs February 26, 1993
Remanded for resentencing in part; otherwise affirmed March 31, 1993
Appeal from Circuit Court, Lane County.
F. Gordon Cottrell, Judge.
Sally L. Avera, Public Defender, and Mary M. Reese, Deputy Public Defender, Salem, filed the brief for appellant.
Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, Salem, filed the brief for respondent.
Before Richardson, Chief Judge, and Warren and Edmonds, Judges.
PER CURIAM
Remanded for resentencing on counts 3, 4, 5, 6, 7, 8, 9 and 35; otherwise affirmed.
Defendant was convicted of seven counts of burglary in the second degree, ORS 164.215, and one count of possession of a controlled substance. ORS 475.992(4)(b). He appeals from the consecutive sentences imposed on seven of the convictions. The state concedes that the court erred in imposing 90 days incarceration on each of those convictions under OAR 253-05-013(3). That rule does not apply when, as in this case, incarceration terms of presumptively probationary sentences are served consecutively to a sentence that includes a prison term. OAR 253-12-020(2)(d); State v. Holliday, 110 Or. App. 426, 824 P.2d 1148, rev den 313 Or. 211 (1992).
Defendant also argues that the court erred in imposing 18 months probation on each consecutive sentence. The primary offense has a post-prison supervision term of 36 months. When a sentence of probation is imposed consecutively to one of incarceration, the probationary term "merges" into the term of post-prison supervision. State v. Dummitt, 115 Or. App. 487, 839 P.2d 246 (1992).
The state argues that all the sentences should be remanded for resentencing and invites us to overrule State v. Smith, 116 Or. App. 558, 842 P.2d 805 (1992), in which we held that the court on remand may resentence only on the convictions on which erroneous sentences were imposed. We decline the state's invitation.
Remanded for resentencing on counts 3, 4, 5, 6, 7, 8, 9 and 35; otherwise affirmed.