FILED: July 19, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

ROBERT LEE HOLQUIN,

Appellant.

CF030176; A122317

Appeal from Circuit Court, Umatilla County.

Rudy M. Murgo, Judge.

Submitted on record and briefs June 8, 2006.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L.

Hadlock, Assistant Solicitor General, filed the brief for respondent.

Before Schuman, Presiding Judge, and Landau* and Ortega, Judges.

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

*Landau, J., vice Ceniceros, S. J.

PER CURIAM

After a trial to a jury, defendant was convicted of assault on a public safety officer, ORS 163.208. The trial court imposed a durational departure sentence of 36 months' imprisonment and 24 months' post-prison supervision based on its findings that petitioner's offense inflicted harm or loss significantly greater than typical, the offense inflicted permanent injury to the victim, and it was part of an organized crime organization. The court ruled that "any one" of the factors "would be sufficient for the upward departure." On appeal, defendant argues that the departure sentence violated the principles enunciated in 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 it was based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or App 113, 133 P3d 343 (2006), the sentence is plainly erroneous. For the reason set forth in Ramirez, we exercise our discretion to correct the error.

Sentence vacated; remanded for resentencing; otherwise affirmed.


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