State v. Small

790 P.2d 48, 101 Or. App. 448, 1990 Ore. App. LEXIS 460

Opinion

PER CURIAM

Defendant pled guilty to assault in the first degree. ORS 163.185. The trial court ordered “that defendant be sentenced to twenty (20) years, with a ten (10) year minimum[.]” The court also found that defendant was a dangerous offender, ORS 161.725, and “therefore ordered that [he] be sentenced to an additional twenty (20) years, with a minimum of ten (10) years, * * * said sentence to run concurrently” with the sentence for assault in the first degree. He assigns error only to the sentence.

Defendant contends that “[t]he trial court erred in sentencing [him] for the underlying crime while also imposing a separate sentence for being a dangerous offender.” The state concedes, and we agree, that the court erred. State v. Downs, 69 Or App 556, 686 P2d 1041 (1984). We reject the state’s suggestion that we treat the error as “harmless” on the ground that the second sentence was to be concurrent rather than consecutive. We also decline the invitation to modify the sentence ourselves. See Coulter v. Maass, 97 Or App 636, 776 P2d 1318, rev den 308 Or 500 (1989).

Sentence vacated; remanded for resentencing; otherwise affirmed.