Opinion
91-117; CA A69511
Argued and submitted June 29, 1992
Convictions affirmed; remanded for resentencing August 12, 1992
Appeal from Circuit Court, Clackamas County.
Raymond Bagley, Judge.
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.
Meg E. Kieran, Assistant Attorney General, Salem, argued the cause for respondent. With her 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
Convictions affirmed; remanded for resentencing.
Defendant pled guilty to robbery in the first degree with a firearm, ORS 164.415, and robbery in the third degree. ORS 164.395. The court imposed 60 months incarceration as a "gun minimum" sentence, ORS 161.610, for the primary offense of robbery in the first degree. It then imposed consecutive 12 months incarceration for the third degree robbery under grid block 5-C. Defendant argues that OAR 253-12-020(2)(a) requires the robbery sentence to be imposed under grid block 5-I.
OAR 253-12-020(2)(a) provides:
"Subject to the provisions of subsection (b) of this section, the presumptive incarceration term of the consecutive sentences is the sum of:
"(A) the presumptive incarceration term for the primary offense, as defined in OAR 253-03-001(17); and
"(B) up to the maximum incarceration term indicated in the Criminal History I Column for each additional offense imposed consecutively."
The state argues that defendant agreed to imposition of sentence according to grid block 5-C. Defendant did agree that that grid block applied to the conviction for third degree robbery. However, he did not agree to consecutive sentences and argued against their imposition. When the sentencing court agreed with the state that consecutive sentences should be imposed, it was required to calculate the sentences according to the guidelines limitations. See State v. Davis, 113 Or. App. 118, 830 P.2d 620 (1992). It failed to do so.
Convictions affirmed; remanded for resentencing.