State v. Lynes , 104 Or. App. 216 ( 1990 )

PER CURIAM

Defendant pled no contest to three Class A felonies: sodomy in the first degree, sexual penetration with a foreign object and burglary in the first degree. The trial court imposed three consecutive 20-year sentences and found defendant to be a dangerous offender, pursuant to ORS 161.725. The court then imposed three additional concurrent 30-year sentences. Defendant contends on appeal, and the state concedes, that the trial court erred in sentencing him both for his underlying crimes and as a dangerous offender on every charge.

The scope of our jurisdiction on an appeal from a plea of no contest is limited by ORS 138.050 to whether the sentence exceeds the maximum allowable by law or is unconstitutionally cruel or unusual. The trial court erred in applying the ORS 161.725 enhancement in addition to, rather than as an alternative to, the sentence for the underlying crime. The sentence exceeded the maximum allowable. We remand for resentencing. State v. Small, 101 Or App 448, 790 P2d 48 (1990); State v. Downs, 69 Or App 556, 686 P2d 1041 (1984).

Sentence vacated; remanded for resentencing; otherwise affirmed.