Opinion
No. C-71-05-1667 Cr
Submitted on briefs July 25, 1972
Remanded with instructions August 10, 1972
Appeal from Circuit Court, Multnomah County.
PHILLIP J. ROTH, Judge.
Gary D. Babcock, Public Defender, and F. E. Glenn, Deputy Public Defender, Salem, for appellant.
Lee Johnson, Attorney General, and Thomas H. Denney, Assistant Attorney General, Salem, for respondent.
Before SCHWAB, Chief Judge, and LANGTRY and THORNTON, Judges.
REMANDED WITH INSTRUCTIONS.
Upon trial without a jury, defendant was found guilty of rape. Former ORS 163.210. The state proposed, and the court imposed, a life sentence pursuant to former ORS 137.111.
Former ORS 137.111 provided:
"After the presentence hearing and upon the consideration of the psychiatric report required by ORS 137.112 to 137.115, the court may, in its discretion, in lieu of any other sentence authorized by law for such crime, sentence any person convicted under ORS 163.210 * * * to an indeterminate term not exceeding the natural life of such person if:
"(1) The offense involved a child under the age of 16 years; and
"(2) The court finds that such person has a mental or emotional disturbance, deficiency or condition predisposing him to the commission of any crime punishable under ORS 163.210 * * * to a degree rendering the person a menace to the health or safety of others."
The defendant appeals, contending that he was erroneously sentenced under former ORS 137.111 in that the court did not make a finding that the rape victim was under the age of 16, and that there is no evidence in the record to support such a finding. The state concedes that the defendant's contention is correct and that the relief defendant seeks — vacation of the sentence imposed and a remand for an appropriate sentence — is appropriate.
Remanded for further proceedings in accordance with this opinion.