State v. Medina

823 P.2d 453 (1992)

111 Or.App. 108

STATE of Oregon, Respondent, v. Ricardo Sanchez MEDINA, Appellant.

C90-05-32645; CA A67219.

Court of Appeals of Oregon.

Submitted on Record and Briefs December 19, 1991.

Decided January 22, 1992.

Sally L. Avera, Public Defender, and Irene B. Taylor, Salem, filed the brief for appellant.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Timothy A. Sylwester, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.

PER CURIAM.

Defendant appeals his convictions by a jury for delivery of a controlled substance and possession of a controlled substance as part of a scheme or network. ORS 475.992; OAR 253-04-002(3), App 4. He did not demur to the indictment but, before sentencing, challenged the constitutionality of the scheme or network language. He has preserved his challenge to the sentence imposed. The state concedes that the sentence is improper. State v. Moeller, 105 Or. App. 434, 806 P.2d 130, rev. dismissed 312 Or. 76, 815 P.2d 701 (1991). We accept that concession.

Because we remand for resentencing on that ground, we need not address defendant's other assignment of error.

Convictions affirmed; remanded for resentencing.