Opinion
88-648; CA A60117
Argued and submitted March 27, 1990
Affirmed April 25, 1990
Appeal from Circuit Court, Clackamas County.
Sid Brockley, Judge.
Sally L. Avera, Acting Public Defender, Salem, argued the cause and filed the brief for appellant.
Janet Klapstein, 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 Graber, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Sentence vacated; remanded for resentencing; otherwise affirmed.
Defendant pled guilty to assault in the first degree. ORS 163.185. The trial court ordered "that defendant be sentenced to twenty (20) years, with a ten (10) year minimum[.]" The court also found that defendant was a dangerous offender, ORS 161.725, and "therefore ordered that [he] be sentenced to an additional twenty (20) years, with a minimum of ten (10) years, * * * said sentence to run concurrently" with the sentence for assault in the first degree. He assigns error only to the sentence.
Defendant contends that "[t]he trial court erred in sentencing [him] for the underlying crime while also imposing a separate sentence for being a dangerous offender." The state concedes, and we agree, that the court erred. State v. Downs, 69 Or. App. 556, 686 P.2d 1041 (1984). We reject the state's suggestion that we treat the error as "harmless" on the ground that the second sentence was to be concurrent rather than consecutive. We also decline the invitation to modify the sentence ourselves. See Coulter v. Maass, 97 Or. App. 636, 776 P.2d 1318, rev den 308 Or. 500 (1989).
Sentence vacated; remanded for resentencing; otherwise affirmed.