State v. Grant

653 P.2d 242, 60 Or. App. 165, 1982 Ore. App. LEXIS 4096

Opinion

PER CURIAM.

Defendant was found guilty of the crimes of robbery in the first degree (three counts), ORS 164.415; being an ex-convict in possession of a firearm, ORS 166.270; unauthorized use of a vehicle, ORS 164.135; and attempted assault in the first degree, ORS 163.185. All of the charges arose out of the same episode and the assault and the robberies involved the use of a firearm. On the robbery convictions, defendant was sentenced to 20 years with a ten-year minimum term pursuant to ORS 161.610. He contends that the trial court was without authority to impose the ten-year minimum sentence.

ORS 161.610(5) (a) and (b) provide:

“The minimum terms of imprisonment for felony convictions in which the court finds that the defendant used or threatened to use a firearm shall be as follows:

“(a) Except as provided in subsection (6) of this section, upon the first conviction for such felony, five years.

“(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection, 10 years.”

ORS 161.610(5) (b) requires the court to impose a ten-year minimum term bn a conviction for a felony involving use of a firearm only when defendant has been convicted previously and punished under ORS 161.610(5)(a). The state concedes that the record in this case discloses that no such previous conviction exists.

Remanded for resentencing on the defendant’s robbery convictions.