Opinion
138,239, 138,240, 138,241; CA A29977 (Control), A29978, A29979
On reconsideration filed July 26, 1984 Resubmitted In Banc December 11, 1984
Reconsideration allowed and former opinion ( 68 Or. App. 927, 683 P.2d 170 (1984)) withdrawn, affirmed in part, remanded for resentencing March 27, 1985 Reconsideration denied April 26, petition for review denied May 21, 1985 ( 299 Or. 203)
In Banc
Appeal from Circuit Court, Marion County.
Clarke C. Brown, Judge.
Gary D. Babcock, Public Defender, and Helen I. Bloch, Salem, for petition.
Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, contra.
GILLETTE, J.
Petition for reconsideration granted; former opinion withdrawn; judgments of conviction affirmed; remanded for resentencing.
Defendant petitions the Supreme Court for review of this court's decision in State v. Jack, 68 Or. App. 927, 683 P.2d 170 (1984), in which we affirmed from the bench defendant's convictions for attempted murder and ex-convict in possession of a firearm. We treat the petition as one for reconsideration. ORAP Rule 10.10. We grant the petition and remand for resentencing.
Defendant was convicted of shooting two fellow Willamette University students in the dormitory room of one of the victims. The motive was jealousy. The crimes unquestionably occurred during a single criminal transaction. The trial court, in addition to imposing dangerous offender sentences as to each attempted homicide, imposed minimum five-year sentences on each attempted murder conviction because the crimes were committed with a firearm. ORS 161.610(5). Defendant appealled, assigning as error certain matters not involved in this petition for review. We affirmed from the bench. This petition ensued.
Defendant's further conviction for being an ex-convict in possession for a firearm is not involved in this petition for reconsideration.
Defendant did not raise the specific issue he now argues in his petition for review/reconsideration in either the trial court or this court. Obviously, we could ignore the matter now. We choose not to do so, however, because (a) the case on which defendant now relies was decided after his trial and virtually contemporaneously with our original decision in this case (b) the sentences in question are clearly erroneous and (c) we are today addressing a similar issue, for which we held this petition. See State v. Haywood, 73 Or. App. 6, 697 P.2d 977 (1985); see also State v. Willy, 36 Or. App. 853, 585 P.2d 762 (1978).
Defendant argues that the two five-year minimum sentences for use of a firearm were impermissible because the crimes involved in this case occurred during a single criminal transaction. Defendant is correct. The case must be remanded for resentencing. State v. Hardesty, 68 Or. App. 591, 682 P.2d 824 (1984), aff'd 298 Or. 616, 695 P.2d 569 (1985); see also State v. Haywood, supra, n 2.
Petition for reconsideration granted; former opinion withdrawn; judgments of conviction affirmed; remanded for resentencing.