State v. Diaz-Rivera

FILED: April 28, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

GREGORIA DIAZ-RIVERA,

Defendant-Appellant.

Marion County Circuit Court
08C41113
A139086

Albin W. Norblad, Judge.

Submitted on March 25, 2010.

Peter Gartlan, Chief Defender, and Joshua B. Crowther, Senior Deputy Public Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Linda Wicks, Assistant Attorney General, filed the brief for respondent.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Judge.

PER CURIAM

Remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of delivery of methamphetamine, ORS 475.890, delivery of cocaine, ORS 475.880, delivery of heroin, ORS 475.850, and child neglect in the first degree, ORS 163.547.  She contends on appeal that the sentence imposed by the trial court violated OAR 213-012-0020.  Although she did not preserve the issue before the trial court, she argues we should consider it as plain error.  The state concedes that the trial court plainly erred in imposing a sentence in violation of OAR 213-012-0020.  We agree, accept that concession, exercise our discretion to review the error, and conclude that the case must be remanded for resentencing.  See State v. Davidson, 208 Or App 672, 673, 145 P3d 276 (2006) (treating similar sentencing error as plain error and exercising discretion to correct it); see also State v. Rodvelt, 187 Or App 128, 136, 66 P3d 577, rev den, 336 Or 17 (2003) (where an error requires resentencing, entire case must be remanded for resentencing).

Remanded for resentencing; otherwise affirmed.