FILED: August 30, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DAMON PATRICK HOWARD,

Appellant.

00CR0517; A117364

Appeal from Circuit Court, Josephine County.

J. Loyd O'Neal, Senior Judge.

Submitted on record and briefs July 31, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Walter J. Ledesma, Senior Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Rosenblum, Judge.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted after a jury trial of two counts of unauthorized use of a vehicle, ORS 164.135, and one count each of first-degree aggravated theft, ORS 164.057, second-degree theft, ORS 164.045, first-degree burglary, ORS 164.225, second-degree criminal mischief, ORS 164.354, first-degree robbery, ORS 164.415, and tampering with evidence, ORS 162.295. On appeal, he raises numerous challenges to his convictions and sentences. We reject without discussion defendant's challenges to his convictions. One of the sentencing issues that defendant raises is that, under 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 court erred in imposing an upward durational departure sentence based on judicial factfinding that the aggravated theft resulted in harm greater than typical. We need not reach defendant's remaining challenges to his sentences, because we conclude that defendant is entitled to resentencing on that assignment of error. The state concedes that, under this court's holding in State v. Sawatzky, 195 Or App 159, 96 P3d 1288 (2004), defendant is entitled under the Sixth Amendment to the United States Constitution to a jury determination of departure factors such as the one at issue here. We agree and accept the state's concession.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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