State v. Fuentes

FILED: June 22, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

ABELARDO CASTRO FUENTES,

Appellant.

99C-56344; A121506

Appeal from Circuit Court, Marion County.

John B. Wilson, Judge.

Submitted on record and briefs May 23, 2005.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Susan F. Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, filed the brief for respondent.

Before Landau, Presiding Judge, and Brewer, Chief Judge,* and Armstrong, Judge.

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

*Brewer, C. J., vice Ceniceros, S. J.

PER CURIAM

Defendant was convicted of felony assault in the fourth degree and interfering with making a report. The trial court imposed a durational departure sentence based on findings of persistent involvement in similar offenses and a "total disregard for the law." On appeal, defendant argues that the sentence is unlawful because it is based on facts not admitted or found by a jury, in violation of Blakely v. Washington, 542 US ___, 124 S Ct 2531, 159 L Ed 2d 403, (2004). The state concedes that, in light of our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), defendant is correct. We accept the concession.

Sentence vacated; remanded for resentencing; otherwise affirmed.