State v. Browder

RICHARDSON, P. J.

Defendant appeals his convictions for robbery in the first degree (ORS 164.415) and kidnapping in the second degree (ORS 163.225) arising out of the same criminal episode. He contends that the in-court identification of him by the victim should have been suppressed. He also challenges the minimum sentences imposed pursuant to ORS 144.110(1) and 161.610. We affirm the convictions and remand for resentencing.

The court found that the out-of-court identification procedure used by the law enforcement officers was not impermissibly suggestive and that the in-court identification was proper. We agree.

The court sentenced defendant to 14 years imprisonment on the robbery charge and imposed a seven-year minimum term pursuant to ORS 144.110(1). On the kidnap charge, the court sentenced defendant to eight years imprisonment with a four-year minimum term pursuant to ORS 144.110(1). The court found that defendant had used a gun in the commission of both charges and imposed a five-year minimum term on each charge pursuant to ORS 161.610. The sentences were ordered to run consecutively, including the minimum terms.

Defendant first contends that the imposition of minimum terms of imprisonment violates ORS 161.025, Article I, § 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. That contention was disposed of in State v. Turner, 296 Or 451, 676 P2d 873 (1984).

Defendant next contends that consecutive minimum sentences cannot be imposed under ORS 161.610 for a series of felonies arising out of the same criminal episode. Defendant is correct. State v. Hardesty, 68 Or App 591, 682 P2d 824 (1984).

Convictions affirmed; remanded for resentencing.