State v. Smitherman , 200 Or. App. 383 ( 2005 )

114 P.3d 540 (2005) 200 Or. App. 383

STATE of Oregon, Respondent,
v.
Kevin Lee SMITHERMAN, Appellant.

No. 0305-32234; A123215.

Court of Appeals of Oregon.

Submitted on Record and Briefs May 23, 2005. Decided June 22, 2005.

Jerome LaBarre, Judge.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Tammy W. Sun, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge,^[*] and ARMSTRONG, Judge.

PER CURIAM.

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 U.S. 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 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (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 P.2d 1253 (1999).

Sentence vacated; remanded for resentencing; otherwise affirmed.

NOTES

[*] Brewer, C.J., vice Ceniceros, S.J.