Opinion
9105-32130; CA A71482
Argued and submitted October 28, 1992
Affirmed December 30, 1992 Reconsideration denied February 24, 1993 Petition for review denied March 23, 1993 ( 315 Or. 644)
Appeal from Circuit Court, Multnomah County.
Robert P. Jones, Judge.
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Affirmed.
Defendant appeals his conviction for robbery in the first degree with a firearm. ORS 164.415. He argues that the court was without authority under ORS 137.635 to deny eligibility for parole, temporary leave or reduction in his prison term. We have answered that argument contrary to his position. State v. Shafer, 116 Or. App. 667, 843 P.2d 462 (1992); State v. Haydon, 116 Or. App. 347, 842 P.2d 410 (1992).
Defendant is correct that the court erred in imposing both a presumptive sentence of 65 months and a 120-month minimum as an enhanced penalty for use of a firearm. ORS 161.610; State v. Stalder, 117 Or. App. 289, 844 P.2d 225 (1992). However, the sentences are to run concurrently. ORS 137.123(1). Under OAR 253-09-001(1) and ORS 137.637, the 120-month term, as the longer determinate sentence, controls. There is no error that requires correction. See State v. Enos, 114 Or. App. 208, 836 P.2d 1347, rev den 314 Or. 728 (1992); State v. Markham, 114 Or. App. 5, 836 P.2d 1348 (1992).
Affirmed.