FILED: August 3, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JOSHUA G. HEATH,

Appellant.

CR02-0009A; A120233

Appeal from Circuit Court, Yamhill County.

John L. Collins, Judge.

Submitted on record and briefs June 28, 2005.

James N. Varner filed the briefs for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Assistant Attorney General, filed the briefs for respondent.

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

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals his conviction on one count of assault in the second degree, ORS 163.175, and his upward departure sentences on two counts of criminal mistreatment in the first degree, ORS 163.205, based on the sentencing court's findings that defendant knew or had reason to know of the victim's particular vulnerability and that the offense involved a violation of public trust or professional responsibility. We reject without discussion defendant's challenge to his conviction. Defendant argues that the imposition of departure sentences violated the rule of law announced in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), that sentencing departure factors other than facts of prior conviction or facts admitted by the defendant must be submitted to a jury. Although defendant did not preserve his challenge, we have held that such error is apparent on the face of the record. State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005). For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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