Opinion
990231447; A111473.
Filed: April 7, 2004.
Appeal from Circuit Court, Multnomah County. William C. Snouffer, Judge.
On appellant's petition for reconsideration filed February 6, 2004. Opinion filed October 22, 2003. 190 Or. App. 299, 78 P.3d 132.
Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, and Jennelle Meeks Barton, Deputy Defender, Office of Public Defense Services for petition.
PER CURIAM.
Reconsideration allowed; former disposition withdrawn; dangerous offender sentences on counts 3, 4, 5, 6, and 10 vacated; sentence on count 9 vacated; remanded for resentencing; otherwise affirmed.
Defendant seeks reconsideration of our previous decision in this case, State v. Tanner, 190 Or. App. 299, 78 P.3d 132 (2003), arguing that we erred in affirming on an issue on which the state correctly conceded error. We agree and grant reconsideration.
Defendant was convicted of numerous felonies. The trial court imposed dangerous offender sentences under ORS 161.725(1)(b) or (c) on several Class B felonies in the absence of a jury's determination of the necessary underlying facts. As the state concedes, that action was erroneous and requires resentencing. State v. Mitchell, 84 Or. App. 452, 457-58, 734 P.2d 379, rev den, 303 Or. 590 (1987).
We adhere to our previous conclusion that the trial court erred in sentencing defendant to two upward departures on count 9, resulting in a minimum sentence of 260 months for a Class A felony that had a maximum sentence of 20 years, or 240 months. See State v. Remme, 173 Or. App. 546, 565-66, 23 P.3d 374 (2001). We also adhere to our rejection of defendant's other assignments of error.
Reconsideration allowed; former disposition withdrawn; dangerous offender sentences on counts 3, 4, 5, 6, and 10 vacated; sentence on count 9 vacated; remanded for resentencing; otherwise affirmed.