State v. Hernandez

95 P.3d 732, 194 Or. App. 490, 2004 Ore. App. LEXIS 926

Opinion

PER CURIAM

Defendant appeals his convictions and sentences on multiple counts of robbery and kidnapping, as well as unauthorized use of a vehicle. The trial court imposed gun minimum sentences pursuant to ORS 161.610 on the robbery convictions. Defendant contends that no evidence in the record supports a conclusion that he personally used or threatened to use a firearm in the commission of those offenses. The state agrees and concedes error. We accept that concession. See State v. Thiehoff, 169 Or App 630, 635-36, 10 P3d 322 (2000), rev den, 332 Or 137 (2001) (“if a minimum sentence is to be imposed pursuant to ORS 161.610, the finder of fact must first determine that the defendant personally used or threatened to use a firearm”). We reject without discussion defendant’s remaining assignments of error.

Convictions affirmed; remanded for resentencing.