FILED: December 7, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DALE L. BRYANT,

Appellant.

F06-339; A122477

Appeal from Circuit Court, Union County.

Gregory L. Baxter, Judge.

On appellant's petition for reconsideration filed September 6, 2005. Affirmed without opinion filed August 24, 2005. 201 Or App 300, 120 P3d 29 (2005).

George W. Kelly for petition.

Before Edmonds, Presiding Judge, and Linder, Judge, and Breithaupt, Judge pro tempore.

PER CURIAM

Reconsideration allowed; former opinion withdrawn; sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant appealed his convictions for first-degree arson, ORS 164.325, and aggravated first-degree theft, ORS 164.057, and challenged his departure sentences on those convictions. We affirmed without opinion. State v. Bryant, 201 Or App 300, 120 P3d 29 (2005). Defendant asks us to reconsider our decision, particularly with respect to his challenge to his departure sentences, which defendant claims were impermissibly based on factors that were neither admitted by defendant nor found by a jury as required by 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). We grant the petition for reconsideration and withdraw our former opinion.

On reconsideration, we affirm defendant's convictions but vacate his sentences and remand for resentencing. Defendant is correct that his sentences--which were based on the trial court's findings that the harm caused by defendant was greater than typical with respect to the arson conviction, and that defendant intended to take advantage of his insurance company with regard to the theft conviction--were plainly erroneous under our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005). For the reason stated in Perez, we exercise our discretion to correct the error.

Reconsideration allowed; sentences vacated; remanded for resentencing; otherwise affirmed.


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