FILED: February 1, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

MICHAEL BENJAMIN SMITH,

Appellant.

03C-42765; A122446

Appeal from Circuit Court, Marion County.

Paul J. Lipscomb, Judge.

Argued and submitted December 29, 2005.

Susan Fair Drake, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Susan G. Howe, 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 Edmonds, Presiding Judge, and Linder and Wollheim,* Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

*Wollheim, J., vice Richardson, S. J.

PER CURIAM

Defendant was convicted of second-degree assault, ORS 163.175, and third-degree robbery, ORS 164.395. On the conviction for second-degree assault, he was sentenced to 70 months' imprisonment and 36 months' post-prison supervision. On the conviction for third-degree robbery, he received an upward departure sentence of 26 months' imprisonment and 24 months' post-prison supervision. He challenges both his convictions and sentences. We reject without discussion defendant's arguments regarding his convictions.

With respect to his sentences, defendant advances a number of arguments, only one of which has merit. Defendant argues that the trial court's imposition of an upward departure sentence was erroneous under 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 the sentence 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 imposition of the sentence should be reviewed as plain error. Under our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), the sentence is plainly erroneous. For the reason discussed in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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