FILED: July 6, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

RUDOLF FRANK VILLANUEVA,

Appellant.

20-03-03749; A121218

Appeal from Circuit Court, Lane County.

Gregory G. Foote, Judge.

Submitted on record and briefs May 24, 2005.

Andrew S. Chilton and Chilton, Ebbett & Rohr, LLC filed the briefs for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals Unit, filed the briefs for respondent.

Before Edmonds, Presiding Judge, and Wollheim and Schuman,* Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

*Schuman, J., vice Richardson, S. J.

PER CURIAM

Defendant appeals a judgment of conviction on three counts of felony assault in the fourth degree, ORS 163.160, and one count of reckless endangerment, ORS 163.195. He raises two issues related to his sentencing. We agree that the trial court's imposition of a departure sentence on Count 1 violated the principles established in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and that the 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). Because we must therefore remand the entire case for resentencing, ORS 138.222(5), it is not necessary to discuss defendant's other assignment of error.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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