State v. Trautwein ( 2009 )

209 P.3d 850 (2009) 229 Or. App. 90

STATE of Oregon, Plaintiff-Appellant,
v.
Brian Scott TRAUTWEIN, Defendant-Respondent.

CM0520181; A129516.

Court of Appeals of Oregon.

On Appellant's Petition for Reconsideration March 19, 2009. Decided June 10, 2009.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, Criminal Appeals, for petition.

Before WOLLHEIM, Presiding Judge, and EDMONDS, Judge, and SERCOMBE, Judge.

PER CURIAM.

The state petitions this court to reconsider its decision in State v. Trautwein, 217 Or.App. 429, 175 P.3d 1028 (2008). In Trautwein, a state's appeal, the state argued that the trial court had erred in ruling that the imposition of consecutive sentences under ORS 137.123(5) would have violated defendant's right to a jury trial under the Sixth Amendment to the United States Constitution. We affirmed without opinion. The state now contends that, in light of Oregon v. Ice, 555 U.S. ___, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), our previous decision was incorrect. We agree and, accordingly, withdraw our former decision and remand for resentencing.

Reconsideration allowed; former disposition withdrawn; remanded for resentencing.