State v. Marks

FILED: April 22, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

DONTAE LAMAR MARKS,

Defendant-Appellant.

Polk County Circuit Court
07P50273
A136456

Charles E. Luukinen, Judge.

Submitted on December 05, 2008.

Peter Gartlan, Chief Defender, and Erica Herb, 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 Amanda J. Austin, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of criminal contempt of court for failing to pay child support.  ORS 33.065.  The trial court imposed a six-year term of probation.  On appeal, defendant argues that the maximum term of probation for his crime is five years, ORS 137.010(4), and that the trial court's imposition of a six-year term constitutes error apparent on the face of the record under ORAP 5.45.  The state concedes that the court plainly erred and that the case should be remanded for resentencing.  We agree that the error is apparent on the face of the record and, given the gravity of the error and the state's concession, exercise our discretion to correct it.

Remanded for resentencing; otherwise affirmed.