FILED: October 12, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DAVID ERNEST GILDERSLEEVE,
aka Jack Johnson,

Appellant.

0102-31463; A118960

Appeal from Circuit Court, Multnomah County.

Henry Kantor, Judge.

Submitted on record and briefs September 20, 2005.

Erin Rohr and Chilton, Ebbett & Rohr LLC filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals his convictions and sentences on one count each of attempted aggravated murder, ORS 163.095, first-degree robbery with a firearm, ORS 164.415, felon in possession of a firearm, ORS 166.270, and unauthorized use of a vehicle, ORS 164.135. We reject without discussion defendant's challenge to the sufficiency of the evidence to support the conviction for attempted aggravated murder. Defendant also raises a preserved challenge to the dangerous offender sentence imposed on the attempted aggravated murder conviction, and an unpreserved challenge to an upward departure sentence. We do not reach defendant's unpreserved sentencing argument because his argument concerning the constitutionality of the dangerous offender sentence is well taken. In State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), we held that dangerous offender sentences in excess of the prescribed statutory maximum sentence that otherwise would apply run afoul of 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), because such enhanced sentences are based on judicial findings of fact rather than on facts found by the jury or admitted by the defendant. Warren controls here.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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