Opinion
No. 02382; A119898.
Argued and submitted May 24, 2006.
August 16, 2006.
Appeal from Circuit Court, Baker County. Eric W. Valentine, Senior Judge.
Erin G. Rohr argued the cause for appellant. With her on the brief was Chilton, Ebbett Rohr.
Christina M. Hutchins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
PER CURIAM
Sentences vacated; remanded for resentencing; otherwise affirmed.
Defendant appeals his convictions and sentences on one count of third-degree assault, ORS 163.165, one count of menacing, ORS 163.190, one count of resisting arrest, ORS 162.315, three counts of harassment, ORS 166.065, one count of second-degree disorderly conduct, ORS 166.025, and one count of second-degree criminal trespass, ORS 164.245. We reject without discussion defendant's assignments of error pertaining to his convictions. Defendant also argues that the trial court erred in imposing an upward departure sentence on the assault conviction and that the trial court erred in imposing an incarceration term and post-prison supervision term on that conviction that exceed the statutory maximum indeterminate sentence of a Class C felony. Because we agree with defendant's final argument and conclude that he is entitled to resentencing, we do not reach his remaining argument concerning his sentences.
The maximum indeterminate sentence for third-degree assault is five years. ORS 161.605. OAR 213-005-0002(4) provides that the "term of post-prison supervision, when added to the prison terms, shall not exceed the statutory maximum indeterminate sentence for the crime[.]" Defendant was sentenced to a 36-month prison term for the third-degree assault and also was given a 36-month post-prison supervision term. Although defendant did not preserve this claim of error, we conclude that it is apparent on the face of the record. State v. Remme, 173 Or App 546, 565-66, 23 P3d 374 (2001). For the reasons enunciated in Remme, we exercise our discretion to correct the error.
Sentences vacated; remanded for resentencing; otherwise affirmed.