State v. Bryant

125 P.3d 32 (2005) 203 Or. App. 114

STATE of Oregon, Respondent,
v.
Dale L. BRYANT, Appellant.

F06-339; A122477.

Court of Appeals of Oregon.

Petition for Reconsideration September 6, 2005. Decided December 7, 2005.

George W. Kelly, Eugene, for petition.

Before EDMONDS, Presiding Judge, and LINDER, Judge, and BREITHAUPT, Judge pro tempore.

On Appellant's Petition for Reconsideration September 6, 2005.

PER CURIAM.

Defendant appealed his convictions for first-degree arson, ORS 164.325, and aggravated first-degree theft, ORS 164.057, and challenged his departure sentences on those convictions. We affirmed without opinion. State v. Bryant, 201 Or.App. 300, 120 P.3d 29 (2005). Defendant asks us to reconsider our decision, particularly with respect to his challenge to his departure sentences, which defendant claims were impermissibly based on factors that were neither admitted by defendant nor found by a jury as required by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We grant the petition for reconsideration and withdraw our former opinion.

On reconsideration, we affirm defendant's convictions but vacate his sentences and remand for resentencing. Defendant is correct that his sentences—which were based on the trial court's findings that the harm caused by defendant was greater than typical with respect to the arson conviction, and that defendant intended to take advantage of his insurance company with regard to the theft conviction—were plainly erroneous under 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). For the reason stated in Perez, we exercise our discretion to correct the error.

Reconsideration allowed; sentences vacated; remanded for resentencing; otherwise affirmed.