State v. Linenko

192 P.3d 855, 222 Or. App. 208, 2008 Ore. App. LEXIS 1143

Opinion

PER CURIAM

Defendant appeals a judgment of conviction for one count of felony driving while under the influence of intoxicants (DUII). ORS 813.010 (2005). He assigns error to the imposition of a sentence that he contends exceeds the maximum sentence for the offense. Defendant pleaded guilty to the offense. The trial court imposed an upward departure sentence of 60 months in prison and 12 months of post-prison supervision — a total of 72 months. On appeal, defendant contends that, because felony DUII is a Class C felony, the statutory maximum sentence is 60 months. ORS 161.605. The state concedes the error. We agree that the trial court erred. See OAR 213-005-0002(4) (the total of prison and post-prison supervision may not exceed the statutory maximum indeterminate sentence).

Remanded for resentencing; otherwise affirmed.