State v. Ricke

FILED: September 28, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

EDWARD OWEN RICKE,

Appellant.

01061346; A120095

Appeal from Circuit Court, Linn County.

Rick J. McCormick, Judge.

Submitted on record and briefs July 8, 2005.

Andrew S. Chilton, and Chilton, Ebbett & Rohr, LLC, filed the brief for appellant.

Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, and David J. Amesbury, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Linder and Wollheim, Judges.

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of stalking, a Class C felony. The trial court imposed a 96-month sentence. On appeal, defendant advances two assignments of error: (1) the 96-month sentence exceeded the maximum sentence permitted by law; and (2) the court imposed a departure sentence based on facts that defendant did not admit and that the court did not submit to a jury, Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). The state concedes that the trial court's sentence exceeded the maximum five-year sentence for a Class C felony, ORS 161.605(3), and that the case must be remanded on that basis. Layton v. Hall, 181 Or App 581, 591, 47 P3d 898 (2002). We accept the state's concession and agree that, because the 96-month sentence exceeded the maximum permitted by law, the case must be remanded for resentencing. Because we remand for resentencing, we need not reach defendant's assignment of error under Blakely.

Sentence vacated; remanded for resentencing; otherwise affirmed.