State v. Von Melker

FILED: June 9, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

ROBERT VON MELKER,

Appellant.

01CR0335; A117296

Appeal from Circuit Court, Josephine County.

William Mackay, Judge.

Submitted on record and briefs April 21, 2004.

James N. Varner filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Brewer, Judge, and Leeson, Judge pro tempore.

PER CURIAM

Convictions affirmed; sentences vacated; remanded for resentencing.

PER CURIAM

Defendant was convicted of one count of assault in the third degree, ORS 163.165, and two counts of unlawful use of a weapon, ORS 166.220. The jury found that defendant used a firearm in the commission of all three offenses. The trial court sentenced him to three 60-month "gun minimum" sentences on each of the three counts. ORS 161.610. In addition, the trial court imposed 36 months of post-prison supervision on each conviction.

On appeal, defendant challenges the sufficiency of the evidence on the assault charge. We affirm that conviction without discussion. Next, defendant argues that the trial court erred in imposing more than one gun minimum sentence on convictions arising from the same criminal episode. The state concedes the error, and we accept the concession. See, e.g., State v. Hardesty, 298 Or 616, 695 P2d 569 (1985); State v. Black, 161 Or App 662, 987 P2d 530 (1999). Finally, defendant argues that the total prison time plus post-prison supervision that the trial court imposed exceeds the statutory maximum. The state concedes that error as well, although it suggests that we need not address the issue, because the sentences on all three convictions already will need to be vacated and remanded because of the erroneously imposed gun minimums. We agree with the state.

Convictions affirmed; sentences vacated; remanded for resentencing.