State v. Rambo

Court of Appeals of Oregon

State v. Rambo

149 P.3d 172, 209 Or. App. 598, 2006 Ore. App. LEXIS 1889

CourtCourt of Appeals of Oregon

DecidedDecember 6, 2006

Docket04103; A125023

StatusPublished

Cited by1 cases

This text of 149 P.3d 172 (State v. Rambo) 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. Rambo, 149 P.3d 172, 209 Or. App. 598, 2006 Ore. App. LEXIS 1889 (Or. Ct. App. 2006).

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Opinion

*599 PER CURIAM

Defendant was convicted by a jury of two counts of first-degree robbery, ORS 164.415, two counts of second-degree assault, ORS 163.175, one count of felon in possession of a firearm, ORS 166.270, and one count of possession of a controlled substance, ORS 475.992. On appeal, defendant raises several evidence-based assignments of error, which we reject without discussion. Defendant also challenges his sentences on the ground that the court erred in imposing an upward departure sentence on the felon in possession conviction based on a finding of “persistent involvement” in similar offenses and in ordering several sentences to be served consecutively, based on facts not found by the jury or admitted by defendant. Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). We do not reach defendant’s argument concerning consecutive sentences, as we conclude that he is entitled to resentencing because the court imposed an upward departure sentence based on facts not found by the jury or admitted by defendant.

Defendant’s challenge to the departure sentence is unpreserved. However, in State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1, 139 P3d 981 (2006), we held that the imposition of a departure sentence under similar circumstances constituted plain error. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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*599 PER CURIAM

Defendant was convicted by a jury of two counts of first-degree robbery, ORS 164.415, two counts of second-degree assault, ORS 163.175, one count of felon in possession of a firearm, ORS 166.270, and one count of possession of a controlled substance, ORS 475.992. On appeal, defendant raises several evidence-based assignments of error, which we reject without discussion. Defendant also challenges his sentences on the ground that the court erred in imposing an upward departure sentence on the felon in possession conviction based on a finding of “persistent involvement” in similar offenses and in ordering several sentences to be served consecutively, based on facts not found by the jury or admitted by defendant. Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). We do not reach defendant’s argument concerning consecutive sentences, as we conclude that he is entitled to resentencing because the court imposed an upward departure sentence based on facts not found by the jury or admitted by defendant.

Defendant’s challenge to the departure sentence is unpreserved. However, in State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1, 139 P3d 981 (2006), we held that the imposition of a departure sentence under similar circumstances constituted plain error. For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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149 P.3d 172, 209 Or. App. 598, 2006 Ore. App. LEXIS 1889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rambo-orctapp-2006.

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