FILED: September 28, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JAMES ELDON NELSON,

Appellant.

C020883CR; A122103

Appeal from Circuit Court, Washington County.

Nancy W. Campbell, Judge.

Argued and submitted August 12, 2005.

James N. Varner filed the opening brief for appellant and waived oral argument. James Eldon Nelson filed the pro se supplemental appellant's brief.

Denis M. Vannier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

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

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

*Edmonds, J., vice Richardson, S. J.

PER CURIAM

Defendant was convicted of assault, ORS 163.185, and unlawful use of a weapon, ORS 166.220. On appeal, he assigns error to (1) the sentencing court's classification of his assault conviction under crime seriousness category 10 of the Oregon sentencing guidelines; and (2) the denial of a motion for a judgment of acquittal on the assault charge. The state concedes that, because the indictment did not allege the enhancing factor that the victim did not precipitate the attack, the assault conviction should have been classified under category nine rather than category 10 of the sentencing guidelines. We accept the state's concession and remand for resentencing. State v. Stalder, 117 Or App 289, 291, 844 P2d 225 (1992). We reject defendant's arguments regarding the motion for a judgment of acquittal without further discussion.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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