State v. Evans

FILED: November 7, 2007

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

TERRY EVANS,

Defendant-Appellant.

Multnomah County Circuit Court
040130124;
A126775

Michael J. McShane, Judge.

Submitted on record and briefs September 27, 2007.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and David C. Degner, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted on one count of first-degree burglary, ORS 164.225, one count of third-degree robbery, ORS 164.395, and two counts of first-degree theft, ORS 164.055. On appeal, he advances various challenges to his sentences, including that the trial court erred in ordering that his sentence for third-degree robbery be served consecutively to his sentence for first-degree burglary.

The trial court imposed consecutive sentences under ORS 137.123(2), which permits consecutive sentences when "a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct[.]" The state concedes that the third-degree robbery offense and the first-degree burglary offense arose from the same continuous and uninterrupted course of conduct and that the trial court erred in imposing consecutive sentences. We agree with the state and accept the concession.

Because the trial court erred in imposing consecutive sentences, we are required to remand the entire case for resentencing. ORS 138.222(5). Therefore, we need not reach defendant's remaining assignments of error regarding his sentences.

Sentences vacated; remanded for resentencing; otherwise affirmed.