State v. Westbrook

FILED: March 11, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOHN DWIGHT WESTBROOK,

Defendant-Appellant.

Lane County Circuit Court
2004-23125, 2004-23277, 2005-05744,
2004-23624, 2005-05745, 2005-07054
A128352 (Control)
A128353, A128354, A129155, A129156, A129157

Maurice K. Merten, Judge.

On respondent's petition for reconsideration filed January 28, 2009.  Opinion filed December 24, 2008, 224 Or App 493, 199 P3d 343 (2008); opinion filed July 30, 2008, 221 Or App 433, 190 P3d 437.

Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals, for petition.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Riggs, Senior Judge.

PER CURIAM

Reconsideration allowed; former opinions vacated; affirmed.

PER CURIAM

The state petitions for reconsideration, arguing that, in the light of Oregon v. Ice, ___ US ___, 129 S Ct 711, ___ L Ed 2d ___ (2009), we should vacate our prior opinion in State v. Westbrook, 221 Or App 433, 190 P3d 437, vac'd and rem'd on recons, 224 Or App 493, 199 P3d 343 (2008).  We agree that Oregon v. Ice is dispositive and that, consequently, the trial court did not err in imposing consecutive sentences.  Accordingly, we vacate both of our former opinions, each of which was predicated on the premise that State v. Ice, 343 Or 248, 170 P3d 1049 (2007), was controlling.

Reconsideration allowed; former opinions vacated; affirmed.