Opinion
87-853A-C-2; CA A47433
Aruged and submitted December 21, 1988
Remanded with instructions February 22, 1989
Appeal from the Circuit Court, Jackson County, L.L. Sawyer, Judge.
Sally L. Avera, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
John A. Reuling, Jr., 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.
PER CURIAM
Remanded with instructions to vacate convictions for conspiracy to deliver controlled substance and possession of controlled substance and to resentence on conviction for delivery of controlled substance.
Defendant appeals her convictions for conspiracy to deliver a controlled substance, ORS 475.992 (1); ORS 161.450 (1), delivery of a controlled substance, ORS 475.992 (1), and possession of a controlled substance. ORS 475.992 (4). The state concedes that the trial court erred in entering separate convictions and sentences. We accept the concession. ORS 161.485 (3); State v. McNamer, 80 Or. App. 418, 421, 722 P.2d 51 (1986).
The state argues, nonetheless, that we should not reach the merger question, because defendant failed to raise it below. Alleged errors will not be addressed on appeal unless preserved in the lower court, except errors of law apparent on the face of the record. ORAP 7.19(5). As in State v. McNamer, supra, the egregious error is apparent on the face of the record.
Remanded with instructions to vacate the convictions for conspiracy to deliver a controlled substance and possession of a controlled substance and to resentence on the conviction for delivery of a controlled substance.