State v. Ferguson

FILED: July 5, 2001

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Appellant,

v.

BRADLEY ALLAN FERGUSON,

Respondent.

99C55359; A109630

Appeal from Circuit Court, Marion County.

Hugh C. Downer, Judge.

Submitted on record and briefs June 4, 2001.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Jonathan H. Fussner, Assistant Attorney General, filed the brief for respondent.

Carla M. French and Ferder, Casebeer & French, LLP, filed the brief for respondent.

Before Haselton, Presiding Judge, and Linder and Wollheim, Judges

PER CURIAM

Reversed and remanded for resentencing; otherwise affirmed.

PER CURIAM

The state appeals from a judgment imposing an 18-month dispositional departure sentence of imprisonment for the crime of escape in the second degree, ORS 162.155, and then suspending the execution of that 18-month sentence and placing defendant on probation for a period of 60 months. The state argues that, under the sentencing guidelines, the court had the authority either to sentence defendant to a prison term as a dispositional departure sentence or to impose a sentence of probation, but that it lacked authority to impose and then suspend execution of a prison sentence. Defendant concedes that the trial court erred, and agrees that the case should be remanded for resentencing. We accept defendant's concession of error. See generally State v. Keefer, 169 Or App 338, 343, 8 P3d 1002 (2000) (sentencing guidelines require execution of either a prison sentence or a sentence of probation); State v. Lucas, 113 Or App 12, 14, 830 P2d 601, rev den 314 Or 176 (1992) (same).

Reversed and remanded for resentencing; otherwise affirmed.