State v. Chiprez , 86 Or. App. 3 ( 1987 )

PER CURIAM

Defendant appeals his convictions for attempted murder, attempted assault in the first degree and burglary in the first degree.

His first assignment contends that the court erred in an instruction given to the jury. Defendant did not except to the instruction or otherwise properly raise the issue which he now argues. We decline to consider the assignment of error.

In case number 85-0579, defendant was convicted of attempted assault on Peterson and burglary of Peterson’s residence with intent to commit assault. The court “merged” the convictions for sentencing purposes. Defendant argues, and the state concedes, that the convictions should have been merged into one conviction for burglary in the first degree. We agree. State v. Woolard, 259 Or 232, 484 P2d 314, 485 P2d 1194 (1971).

In case number 85-0393, defendant was convicted of attempted murder of Govan. In that crime and the assault of Peterson, he used a gun. The court imposed a five-year minimum sentence in each crime for use of a gun pursuant to ORS 161.610 to be served concurrently. The state concedes, and we agree, that only a single mandatory minimum sentence under ORS 161.610 may be imposed. State v. Hardesty, 298 Or 616, 695 P2d 569 (1985).

In case number 85-0579, judgment on conviction for assault reversed; in case number 85-0393, five-year minimum sentence for assault vacated; otherwise affirmed.