State v. Tanner

• Decision Date: 07 April 2004
• Citation: 192 Or. App. 670,87 P.3d 688
• Parties: STATE of Oregon, Respondent, v. Willie Laron TANNER, Appellant.
• Court: Oregon Court of Appeals

87 P.3d 688

192 Or. App. 670

STATE of Oregon, Respondent, v. Willie Laron TANNER, Appellant.

990231447; A111473.

Court of Appeals of Oregon.

Petition for Reconsideration February 6, 2004.

Decided April 7, 2004.

Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, and Jennelle Meeks Barton, Deputy Defender, Office of Public Defense Services for petition.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge,¹ and LEESON, Judge pro tempore.

On Appellant's Petition for Reconsideration February 6, 2004.

PER CURIAM.

Defendant seeks reconsideration of our previous decision in this case, State v. Tanner, 190 Or.App. 299, 78 P.3d 132 (2003), arguing that we erred in affirming on an issue on which the state correctly conceded error. We agree and grant reconsideration.

Defendant was convicted of numerous felonies. The trial court imposed dangerous offender sentences under ORS 161.725(1)(b) or (c) on several Class B felonies in the absence of a jury's determination of the necessary underlying facts. As the state concedes, that action was erroneous and requires resentencing. State v. Mitchell, 84 Or.App. 452, 457-58, 734 P.2d 379,rev. den., 303 Or. 590, 739 P.2d 570 (1987).

We adhere to our previous conclusion that the trial court erred in sentencing defendant to two upward departures on count 9, resulting in a minimum sentence of 260 months for a Class A felony that had a maximum sentence of 20 years, or 240 months. See State v. Remme, 173 Or.App. 546, 565-66, 23 P.3d 374 (2001)

. We also adhere to our rejection of defendant's other assignments of error.

Reconsideration allowed; former disposition withdrawn; dangerous offender sentences on counts 3, 4, 5, 6, and 10 vacated; sentence on count 9 vacated; remanded for resentencing; otherwise affirmed.

1. Wollheim, J., vice Schuman, J.