State v. Bellek , 117 Or. App. 537 ( 1992 )

PER CURIAM

Both parties petition for review of our opinion. 114 Or App 17,834 P2d 458 (1992). Treating the petitions as ones for reconsideration, ORAP 9.15(1), we deny defendant’s and grant the state’s. Defendant had been sentenced to life imprisonment, pursuant to ORS 163.115(3)(a), and to 121 months under the guidelines. We held that it was error to impose life imprisonment and remanded for resentencing.

In State v. Morgan, 116 Or App 338, 345, 842 P2d 406 (1992), we said:

“In State v. Bellek, supra, we held that ORS 137.637 requires the court to impose at least 121 months in prison under the guidelines. On further analysis, we are unable to reconcile the provisions of ORS 163.115(3) with the guidelines rules and the statutes. ORS 137.637 does not control ORS 163.115(3)(b) if it does not control ORS 163.115(3)(c). We conclude that ORS 163.115(3) has been superseded in its entirety by the guidelines. See State v. Shumway, 291 Or 153, 630 P2d 796 (1981).”

We modify our opinion, consistently with State v. Morgan, supra, and adhere to it as modified. However, that modification does not require resentencing on the 121-month term, which is within the presumptive guidelines sentence.

Appellant’s petition for reconsideration denied; respondent’s petition for reconsideration allowed; opinion modified and adhered to as modified.