FILED: August 4, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

EDGAR FILADELFO HERNANDEZ,

Appellant.

C021103CR; A120054

Appeal from Circuit Court, Washington County.

Timothy P. Alexander, Judge.

Argued and submitted June 10, 2004.

David J. Celuch argued the cause and filed the brief for appellant.

Jill Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Haselton, Presiding Judge, and Linder and Ortega, Judges.

PER CURIAM

Convictions affirmed; remanded for resentencing.

PER CURIAM

Defendant appeals his convictions and sentences on multiple counts of robbery and kidnapping, as well as unauthorized use of a vehicle. The trial court imposed gun minimum sentences pursuant to ORS 161.610 on the robbery convictions. Defendant contends that no evidence in the record supports a conclusion that he personally used or threatened to use a firearm in the commission of those offenses. The state agrees and concedes error. We accept that concession. See State v. Thiehoff, 169 Or App 630, 635-36, 10 P3d 322 (2000), rev den, 332 Or 137 (2001) ("if a minimum sentence is to be imposed pursuant to ORS 161.610, the finder of fact must first determine that the defendant personally used or threatened to use a firearm"). We reject without discussion defendant's remaining assignments of error.

Convictions affirmed; remanded for resentencing.


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