State v. Bruce

Court of Appeals of Oregon

State v. Bruce

118 P.3d 279, 201 Or. App. 295, 2005 Ore. App. LEXIS 1064

CourtCourt of Appeals of Oregon

DecidedAugust 17, 2005

Docket021264; A122026

StatusPublished

Cited by1 cases

This text of 118 P.3d 279 (State v. Bruce) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Bruce, 118 P.3d 279, 201 Or. App. 295, 2005 Ore. App. LEXIS 1064 (Or. Ct. App. 2005).

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Opinion

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.

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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.

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118 P.3d 279, 201 Or. App. 295, 2005 Ore. App. LEXIS 1064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bruce-orctapp-2005.

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