State v. Nelson

120 P.3d 538, 201 Or. App. 715, 2005 Ore. App. LEXIS 1245

Opinion

PER CURIAM

Defendant was convicted of assault, ORS 163.185, and unlawful use of a weapon, ORS 166.220. On appeal, he assigns error to (1) the sentencing court’s classification of his assault conviction under crime seriousness category 10 of the Oregon sentencing guidelines; and (2) the denial of a motion for a judgment of acquittal on the assault charge. The state concedes that, because the indictment did not allege the enhancing factor that the victim did not precipitate the attack, the assault conviction should have been classified under category nine rather than category 10 of the sentencing guidelines. We accept the state’s concession and remand for resentencing. State v. Stalder, 117 Or App 289, 291, 844 P2d 225 (1992). We reject defendant’s arguments regarding the motion for a judgment of acquittal without further discussion.

Sentences vacated; remanded for resentencing; otherwise affirmed.