Opinion
C90-05-32645; CA A67219
Submitted on record and briefs December 19, 1991
Convictions affirmed and remanded for resentencing January 22, 1992
Appeal from Circuit Court, Multnomah County.
Joseph F. Ceniceros, Judge pro tempore.
Sally L. Avera, Public Defender, and Irene B. Taylor, Salem, filed the brief for appellant.
Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, Salem, filed the brief for respondent.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Convictions affirmed; remanded for resentencing.
Defendant appeals his convictions by a jury for delivery of a controlled substance and possession of a controlled substance as part of a scheme or network. ORS 475.992; OAR 253-04-002(3), App 4. He did not demur to the indictment but, before sentencing, challenged the constitutionality of the scheme or network language. He has preserved his challenge to the sentence imposed. The state concedes that the sentence is improper. State v. Moeller, 105 Or. App. 434, 806 P.2d 130, rev dismissed 312 Or. 76, 815 P.2d 701 (1991). We accept that concession.
Because we remand for resentencing on that ground, we need not address defendant's other assignment of error.
Convictions affirmed; remanded for resentencing.