State v. Stewart , 123 Or. App. 432 ( 1933 )

PER CURIAM

We allow the state’s motion for reconsideration of our decision in which we affirmed defendant’s conviction for murder but remanded for resentencing. 120 Or App 245, 850 P2d 1173 (1993).

Defendant was found guilty of murder in violation of ORS 163.115(1) based on stipulated facts. There was no agreement between the parties regarding dismissal of any other charges or the sentence. Defendant’s assignments of error were, thus, reviewable. He argued that the court erred in considering, as part of his criminal history, sexual abuse crimes for which he had been convicted but not sentenced, and that the life sentence and 20-year prison terms were unlawful, as well as the post-prison term of 20 years.

In State v. Morgan, 316 Or 553, 856 P2d 612 (1993), the Supreme Court held that there is no longer an indeterminate “fife sentence” on a murder conviction, but that minimum sentence provisions in ORS 163.115(3)(b) and (c) are still available. See also State v. Bellek, 316 Or 654, 856 P2d 616 (1993). In its motion, the state concedes that the “life sentence” portion of defendant’s sentence is reversible error. The 20-year minimum term is lawful under ORS 163.115, irrespective of which grid block applies to defendant’s criminal history. The state is correct that, under OAR 253-05-004(1) and State v. Morgan, supra, the 20-year term of post-prison supervision is error.

Reconsideration allowed; opinion withdrawn; conviction affirmed; remanded for resentencing.