State v. Magee

FILED: September 6, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

RYAN DALE MAGEE,

Appellant.

03FE1129MA; A124799

Appeal from Circuit Court, Deschutes County.

A. Michael Adler, Judge.

Submitted on record and briefs July 7, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Linder and Wollheim, Judges.

PER CURIAM

Reversed and remanded with instructions to merge convictions for attempted burglary and for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of, among other offenses, one count of attempted burglary (with intent to commit harassment) and one count of attempted burglary (with intent to commit menacing). ORS 164.225; ORS 161.405. Defendant argues that the two attempted burglaries--both based on a single attempted entry--should have merged into a single conviction for attempted burglary. The state concedes that the trial court erred in failing to merge the convictions. State v. Barrett, 331 Or 27, 10 P3d 901 (2000). We agree and accept the concession. (1)

Reversed and remanded with instructions to merge convictions for attempted burglary and for resentencing; otherwise affirmed.

1. Because we conclude that this error requires resentencing, we must remand the entire case for resentencing. ORS 138.222(5).