Opinion
C81-09-34453, C82-12-39131; CA A28758, A28759
Argued and submitted April 25, 1984
Affirmed in part and modified in part June 27, 1984
Appeal from Circuit Court, Multnomah County.
Lee Johnson, Judge.
Marilyn C. McManus, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Brenda J. Peterson, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Richardson, Presiding Judge, and Warden and Newman, Judges.
PER CURIAM
Case No. A28759 affirmed; sentence in Case No. A28758 modified to delete 10-year minimum sentence.
Defendant appeals his conviction for burglary in the first degree (Case No. A28759). He challenges the admission of eyewitness identification testimony, rejection of certain evidence he offered and imposition of a seven-year minimum sentence imposed pursuant to ORS 144.110(1). The claims of error do not require discussion. We affirm the conviction and the sentence imposed.
In a consolidated appeal, defendant also challenges the sentence imposed after the court revoked his probation on a prior conviction for burglary in the first degree (Case No. A28758). On that conviction, the court had imposed a 20-year sentence, suspended execution of the sentence and placed defendant on five-year probation.
In sentencing defendant after revocation of his probation, the court ordered:
"[T]he sentence previously imposed herein shall now be executed, to-wit: 20 YEARS OSP WITH 10 YEAR MIN. TO RUN CONCURRENT WITH CASE NUMBER C82-12-39131 [A28759]."
Defendant contends the court had no authority to modify the sentence previously imposed by adding a 10-year minimum sentence. The state concedes that the court erred. We agree and modify the sentencing order in Case No. A28758 (Trial Court No. C81-09-34453) to delete the 10-year minimum sentence.
Case No. A28759 affirmed; sentence in Case No. A28758 modified to delete 10-year minimum sentence.