State v. Bruce

FILED: August 17, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

THOMAS RAE BRUCE,

Appellant.

021264; A122026

Appeal from Circuit Court, Tillamook County.

Philip L. Nelson, Judge.

Submitted on record and briefs July 15, 2005.

Patrick M. Ebbett and Chilton, Ebbett & Rohr, LLC filed the brief for appellant.

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

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Linder, Judge.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of one count of felon in possession of a firearm, ORS 166.270, and one count of theft in the first degree. He received an upward departure sentence of 60 months on the felon in possession of a firearm count, based on a finding that he was on post-prison supervision at the time of the offense. On appeal, defendant argues that the imposition of the departure sentence violated the rule of law announced in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), that sentencing departure factors other than facts of prior conviction or facts admitted by the defendant must be found by the jury. Although defendant did not preserve his challenge, we have held that such error is apparent on the face of the record. State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005). For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.