State v. Heath

Court of Appeals of Oregon

State v. Heath

116 P.3d 930, 201 Or. App. 92, 2005 Ore. App. LEXIS 969

CourtCourt of Appeals of Oregon

DecidedAugust 3, 2005

DocketCR02-0009A; A120233

StatusPublished

Cited by1 cases

This text of 116 P.3d 930 (State v. Heath) 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.

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State v. Heath, 116 P.3d 930, 201 Or. App. 92, 2005 Ore. App. LEXIS 969 (Or. Ct. App. 2005).

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Opinion

*93 PER CURIAM

Defendant appeals his conviction on one count of assault in the second degree, ORS 163.175, and his upward departure sentences on two counts of criminal mistreatment in the first degree, ORS 163.205, based on the sentencing court’s findings that defendant knew or had reason to know of the victim’s particular vulnerability and that the offense involved a violation of public trust or professional responsibility. We reject without discussion defendant’s challenge to his conviction. Defendant argues that the imposition of departure sentences 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 submitted to a 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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*93 PER CURIAM

Defendant appeals his conviction on one count of assault in the second degree, ORS 163.175, and his upward departure sentences on two counts of criminal mistreatment in the first degree, ORS 163.205, based on the sentencing court’s findings that defendant knew or had reason to know of the victim’s particular vulnerability and that the offense involved a violation of public trust or professional responsibility. We reject without discussion defendant’s challenge to his conviction. Defendant argues that the imposition of departure sentences 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 submitted to a 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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116 P.3d 930, 201 Or. App. 92, 2005 Ore. App. LEXIS 969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-heath-orctapp-2005.

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