State v. Gildersleeve

Court of Appeals of Oregon

State v. Gildersleeve

121 P.3d 663, 202 Or. App. 215, 2005 Ore. App. LEXIS 1327

CourtCourt of Appeals of Oregon

DecidedOctober 12, 2005

Docket0102-31463; A118960

StatusPublished

Cited by1 cases

This text of 121 P.3d 663 (State v. Gildersleeve) 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. Gildersleeve, 121 P.3d 663, 202 Or. App. 215, 2005 Ore. App. LEXIS 1327 (Or. Ct. App. 2005).

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Opinion

PER CURIAM

Defendant appeals his convictions and sentences on one count each of attempted aggravated murder, ORS 163.095, first-degree robbery with a firearm, ORS 164.415, felon in possession of a firearm, ORS 166.270, and unauthorized use of a vehicle, ORS 164.135. We reject without discussion defendant’s challenge to the sufficiency of the evidence to support the conviction for attempted aggravated murder. Defendant also raises a preserved challenge to the dangerous offender sentence imposed on the attempted aggravated murder conviction, and an unpreserved challenge to an upward departure sentence. We do not reach defendant’s unpreserved sentencing argument because his argument concerning the constitutionality of the dangerous offender sentence is well taken. In State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), we held that dangerous offender sentences in excess of the prescribed statutory maximum sentence that otherwise would apply run afoul of 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), because such enhanced sentences are based on judicial findings of fact rather than on facts found by the jury or admitted by the defendant. Warren controls here.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant appeals his convictions and sentences on one count each of attempted aggravated murder, ORS 163.095, first-degree robbery with a firearm, ORS 164.415, felon in possession of a firearm, ORS 166.270, and unauthorized use of a vehicle, ORS 164.135. We reject without discussion defendant’s challenge to the sufficiency of the evidence to support the conviction for attempted aggravated murder. Defendant also raises a preserved challenge to the dangerous offender sentence imposed on the attempted aggravated murder conviction, and an unpreserved challenge to an upward departure sentence. We do not reach defendant’s unpreserved sentencing argument because his argument concerning the constitutionality of the dangerous offender sentence is well taken. In State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), we held that dangerous offender sentences in excess of the prescribed statutory maximum sentence that otherwise would apply run afoul of 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), because such enhanced sentences are based on judicial findings of fact rather than on facts found by the jury or admitted by the defendant. Warren controls here.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

121 P.3d 663, 202 Or. App. 215, 2005 Ore. App. LEXIS 1327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gildersleeve-orctapp-2005.

Opinion

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