State v. VON MELKER

Court of Appeals of Oregon

State v. VON MELKER

91 P.3d 833, 193 Or. App. 765, 2004 Ore. App. LEXIS 686

CourtCourt of Appeals of Oregon

DecidedJune 9, 2004

Docket01CR0335; A117296

StatusPublished

This text of 91 P.3d 833 (State v. VON MELKER) 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.

Bluebook

State v. VON MELKER, 91 P.3d 833, 193 Or. App. 765, 2004 Ore. App. LEXIS 686 (Or. Ct. App. 2004).

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Opinion

*766 PER CURIAM

Defendant was convicted of one count of assault in the third degree, ORS 163.165, and two counts of unlawful use of a weapon, ORS 166.220. The jury found that defendant used a firearm in the commission of all three offenses. The trial court sentenced him to three 60-month “gun minimum” sentences on each of the three counts. ORS 161.610. In addition, the trial court imposed 36 months of post-prison supervision on each conviction.

On appeal, defendant challenges the sufficiency of the evidence on the assault charge. We affirm that conviction without discussion. Next, defendant argues that the trial court erred in imposing more than one gun minimum sentence on convictions arising from the same criminal episode. The state concedes the error, and we accept the concession. See, e.g., State v. Hardesty, 298 Or 616, 695 P2d 569 (1985); State v. Black, 161 Or App 662, 987 P2d 530 (1999). Finally, defendant argues that the total prison time plus post-prison supervision that the trial court imposed exceeds the statutory maximum. The state concedes that error as well, although it suggests that we need not address the issue, because the sentences on all three convictions already will need to be vacated and remanded because of the erroneously imposed gun minimums. We agree with the state.

Convictions affirmed; sentences vacated; remanded for resentencing.

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*766 PER CURIAM

Defendant was convicted of one count of assault in the third degree, ORS 163.165, and two counts of unlawful use of a weapon, ORS 166.220. The jury found that defendant used a firearm in the commission of all three offenses. The trial court sentenced him to three 60-month “gun minimum” sentences on each of the three counts. ORS 161.610. In addition, the trial court imposed 36 months of post-prison supervision on each conviction.

On appeal, defendant challenges the sufficiency of the evidence on the assault charge. We affirm that conviction without discussion. Next, defendant argues that the trial court erred in imposing more than one gun minimum sentence on convictions arising from the same criminal episode. The state concedes the error, and we accept the concession. See, e.g., State v. Hardesty, 298 Or 616, 695 P2d 569 (1985); State v. Black, 161 Or App 662, 987 P2d 530 (1999). Finally, defendant argues that the total prison time plus post-prison supervision that the trial court imposed exceeds the statutory maximum. The state concedes that error as well, although it suggests that we need not address the issue, because the sentences on all three convictions already will need to be vacated and remanded because of the erroneously imposed gun minimums. We agree with the state.

Convictions affirmed; sentences vacated; remanded for resentencing.

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Bluebook (online)

91 P.3d 833, 193 Or. App. 765, 2004 Ore. App. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-von-melker-orctapp-2004.

Opinion

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