Opinion
03CR0514; A121824.
Submitted on record and briefs August 31, 2005.
October 12, 2005.
Appeal from Circuit Court, Coos County. Richard L. Barron, Judge.
Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Ernest G. Lannet, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Elizabeth A. Gordon, Senior Assistant Attorney General, filed the brief for respondent.
PER CURIAM
Sentences vacated; remanded for resentencing; otherwise affirmed.
Defendant was convicted of first-degree burglary, ORS 164.225, third-degree theft, ORS 164.043, and second-degree criminal mischief, ORS 164.354. The trial court imposed an upward departure sentence on the first-degree burglary conviction based on a finding of "repetitive conduct in theft type offenses." Defendant argues that, under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the court erred in imposing a departure sentence based on a fact not found by a jury or admitted by the defendant.
Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. For the reason set forth in Perez, we exercise our discretion to correct the error.
Sentences vacated; remanded for resentencing; otherwise affirmed.