State v. Smitherman
This text of 114 P.3d 540 (State v. Smitherman) 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.
Opinion
Defendant was convicted of felony assault in the fourth degree. The trial court imposed a departure sentence based on findings of deliberate cruelty, a particularly vulnerable victim, persistent involvement in similar crimes, and defendant’s failure to accept responsibility for his conduct. The trial court also imposed an order of restitution in the amount of $740.
On appeal, defendant argues that the departure sentence is unlawful because it is based on facts not admitted or found by a jury, in violation of Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). The state concedes that, in light of our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), defendant is correct. We accept the concession.
Defendant challenges the order of restitution on similar grounds. We need not address defendant’s argument, however, in light of the scope of our remand. ORS 138.222(5); State v. Edson, 329 Or 127, 985 P2d 1253 (1999).
Sentence vacated; remanded for resentencing; otherwise affirmed.
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Cite This Page — Counsel Stack
114 P.3d 540, 200 Or. App. 383, 2005 Ore. App. LEXIS 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smitherman-orctapp-2005.