Opinion
C82-07-36249; CA A28137
Argued and submitted March 28, 1984
Affirmed as modified April 11, 1984 Reconsideration denied May 11, 1984 Petition for review denied May 30, 1984
Appeal from Circuit Court, Multnomah County.
Philip T. Abraham, Judge.
John Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Stephen F. Peifer, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Gillette, Presiding Judge, Joseph, Chief Judge, and Van Hoomissen, Judge.
PER CURIAM
Defendant's 10-year minimum to be served on murder conviction is deleted. In all other respects, defendant's conviction and sentence for murder, including a 5-year minimum of use of a firearm in committing the offense are affirmed.
In this criminal case, the state concedes that the trial court erred in imposing a 10-year minimum sentence on defendant's murder conviction. State v. Macy, 295 Or. 738, 671 P.2d 92 (1983). The 10-year minimum to be served on defendant's murder conviction is deleted. See Or Const, Art VII (Amended), § 3; State v. Smith, 65 Or. App. 344, 671 P.2d 1206 (1983). In all other respects, defendant's conviction and sentence for murder, including a 5-year minimum of use of a firearm in committing the offense, ORS 161.610, are affirmed.
Defendant's other assignments of error are not well taken.
Affirmed as modified.