State v. Gallino

Court of Appeals of Oregon

State v. Gallino

124 P.3d 1294, 203 Or. App. 539, 2005 Ore. App. LEXIS 1657

CourtCourt of Appeals of Oregon

DecidedDecember 28, 2005

Docket20-03-16607; A124009

StatusPublished

Cited by1 cases

This text of 124 P.3d 1294 (State v. Gallino) 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. Gallino, 124 P.3d 1294, 203 Or. App. 539, 2005 Ore. App. LEXIS 1657 (Or. Ct. App. 2005).

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Opinion

PER CURIAM

Defendant was convicted of felony violating a court’s stalking protective order. ORS 163.750(2)(b)(B). The trial court imposed an upward durational departure sentence based on findings that defendant was on probation at the time of the offense, that there had been repeated victimization of the same victim, that there was persistent involvement in similar offenses, and that the harm to the victim was greater than typical. On appeal, defendant challenges only the sentence, arguing that, under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the court erred in imposing a departure sentence based on facts that defendant did not admit and that were not found by a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted of felony violating a court’s stalking protective order. ORS 163.750(2)(b)(B). The trial court imposed an upward durational departure sentence based on findings that defendant was on probation at the time of the offense, that there had been repeated victimization of the same victim, that there was persistent involvement in similar offenses, and that the harm to the victim was greater than typical. On appeal, defendant challenges only the sentence, arguing that, under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the court erred in imposing a departure sentence based on facts that defendant did not admit and that were not found by a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error. The state concedes that, under our decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev allowed, 338 Or 583 (2005), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. We accept the state’s concession and, for the reasons discussed in those cases, exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

124 P.3d 1294, 203 Or. App. 539, 2005 Ore. App. LEXIS 1657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gallino-orctapp-2005.

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