FILED: May 10, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

LORENZO MURPHY, JR.,

Appellant.

001138863; A117287

Appeal from Circuit Court, Multnomah County.

Kimberly C. Frankel, Senior Judge.

Submitted on record and briefs April 7, 2006.

Peter A. Ozanne, Executive Director, and Rankin Johnson IV, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jennifer S. Lloyd, Attorney-In-Charge, Collateral Remedies and Capital Appeals, filed the brief for respondent.

Before Haselton, Presiding Judge, and Armstrong and Rosenblum, Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of third-degree robbery, ORS 164.395, and being a felon in possession of a firearm, ORS 166.270. On appeal, he asserts that the trial court erred in several respects in sentencing him. We need reach only one of defendant's assignments of error because, as the state concedes, defendant is entitled to resentencing based on that error.

The trial court determined defendant's criminal history score in part based on a prior juvenile adjudication. In State v. Harris, 339 Or 157, 172, 118 P3d 236 (2005), the Oregon Supreme Court explained that, in this context, a prior Oregon juvenile adjudication is a "fact that increases a criminal sentence beyond its statutory maximum and must be proved to a jury," citing Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000). The trial court erred in rejecting defendant's Apprendi-based arguments concerning the use of juvenile adjudications.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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