State v. Torres

FILED: September 15, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JUAN TORRES,

Appellant.

C021062CR; A120071

Appeal from Circuit Court, Washington County.

Timothy P. Alexander, Judge.

Submitted on record and briefs August 10, 2004.

James Varner filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Julie A. Smith, Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Armstrong and Brewer, Judges.

LANDAU, P. J.

Remanded for modification of judgment by deletion of ORS 161.610 sentences; otherwise affirmed.

LANDAU, P. J.

Defendant was convicted of robbery in the first degree, ORS 164.415, robbery in the second degree, ORS 164.405, and kidnapping in the first degree, ORS 163.235, among other crimes. Pursuant to ORS 137.700, the trial court sentenced defendant to, respectively, 90 months, 70 months, and 90 months of imprisonment for those convictions and ordered that he serve 54 months of the kidnapping sentence consecutively to his 90-month sentence for first-degree robbery. The court also imposed a 60-month firearm minimum on each of the two robbery convictions. ORS 161.610.

Defendant appeals, arguing that the trial court erred in denying his motion for judgment of acquittal on the first-degree kidnapping charge, in ordering that his sentence on that charge be served consecutively in part to his sentence for robbery in the first degree, and in imposing firearm minimums on his robbery convictions. The state contests defendant's first two assignments of error. As to defendant's third assignment of error, the state concedes that the record does not support a finding that defendant personally used or threatened to use a firearm in the commission of the offenses and that the trial court therefore erred in imposing firearm minimums on defendant's robbery convictions. It requests that we remand the case for entry of a corrected judgment.

We reject defendant's first two assignments of error without discussion. We agree, however, that the trial court erred as argued in defendant's third assignment of error. We therefore accept the state's concession as to that error and remand to the trial court with instructions to modify the judgment accordingly.

Remanded for modification of judgment by deletion of ORS 161.610 sentences; otherwise affirmed.