FILED: August 17, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

RYAN ALAN ALLEN,

Appellant.

0304-31855; A122591

Appeal from Circuit Court, Multnomah County.

Clifford L. Freeman, Judge.

Submitted on record and briefs July 15, 2005.

James N. Varner filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Linder, Judge.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of three counts of felony assault in the fourth degree, ORS 163.160, and received a dispositional departure sentence on one of the counts based on "persistent involvement; repeated assaults." On appeal, defendant argues that the imposition of the departure sentence violated the rule of law announced in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), that sentencing departure factors other than facts of prior conviction or facts admitted by the defendant must be found by the jury. Although defendant did not preserve his challenge, we have held that such 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). For the reason set forth in Perez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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