FILED: March 6, 2003

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DONALD EUGENE MATHENA,

Appellant.

973153CR; A116968

Appeal from Circuit Court, Klamath County.

Roxanne Osborne, Judge.

On appellant's and respondent's joint motion to vacate judgment and remand case to trial court filed December 16, 2002.

David E. Groom, Acting Executive Director, Office of Public Defense Services, and Rebecca Duncan, Deputy Public Defender, and Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan Fussner, Assistant Attorney General, for motion.

Before Brewer, Presiding Judge, and Wollheim and Kistler, Judges.

PER CURIAM

Judgment vacated; case remanded pursuant to ORS 138.227(1).

PER CURIAM

In a joint motion, the parties request that we vacate the judgment and remand this case to the trial court to reconsider the judgment. ORS 138.227(1). We grant the motion and remand this case to the trial court for reconsideration.

When the defendant was sentenced, he was serving a 19-month prison sentence on a different case out of Marion County. The trial court intended to give defendant credit toward his sentence in this case for the time served on the other case. The judgment specifies that the prison terms were "all to run concurrent with each other and concurrent with the sentence" in the other case. In addition, the judgment specifies that "[d]efendant shall receive credit for all time served since the date of last arrest and credit time served on the Marion County matter." Nevertheless, the Department of Corrections declines to give credit for time served on that other case. The parties jointly request remand under ORS 138.227(1) to allow the trial court to enter a revised judgment to give effect to its apparent intentions. If the trial court elects not to enter a revised judgment, then the trial court shall reenter the original judgment.

Judgment vacated; case remanded pursuant to ORS 138.227(1).


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