Opinion
90-05-4934-C; CA A68032
Argued and submitted December 20, 1991
Reversed and remanded to dismiss in part; convictions affirmed in part and remanded for resentencing February 12, 1992
Appeal from Circuit Court, Malheur County.
Milo Pope, Judge.
Eric R. Johansen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
David L. Runner, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Reversed and remanded with instructions to dismiss Counts II and IV; convictions affirmed on Counts I and III; remanded for resentencing.
Defendant was indicted for delivery of marijuana for consideration on March 13 and March 19, 1990 (Counts I and III), and for delivery of marijuana for consideration on March 13 and March 19, 1990, as part of a scheme or network (Counts II and IV). He demurred to the indictment. The demurrer was overruled. His motion to suppress evidence was denied, and he was found guilty of all four charges. The trial court merged Count I with Count II and Count III with Count IV for sentencing.
The state concedes that the trial court erred in overruling the demurrer on Counts II and IV. State v. Moeller, 105 Or. App. 434, 806 P.2d 130, rev dismissed 312 Or. 76 (1991). We accept that concession. State v. Andrade-Torres, 109 Or. App. 153, 817 P.2d 296 (1991).
Defendant's other assignment of error is without merit.
Reversed and remanded with instructions to dismiss Counts II and IV; convictions affirmed on Counts I and III; remanded for resentencing.