FILED: June 14, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JAMES LYLE JORDAN,

Appellant.

03084124C; A123147

Appeal from Circuit Court, Malheur County.

J. Burdette Pratt, Judge.

Submitted on record and briefs April 28, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and David Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney General, filed the brief for appellant.

Before Haselton, Presiding Judge, and Armstrong and Rosenblum,* Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

*Rosenblum, J., vice Richardson, S. J.

PER CURIAM

Defendant was convicted after a jury trial of two counts of felony stalking, ORS 163.732(2)(b), and raises several assignments of error challenging his sentence. Because we agree with one of defendant's arguments, we need not reach the rest of them. The sentencing court imposed an upward durational departure sentence based on a finding that defendant had been persistently involved in similar offenses. Defendant argues that, 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), the court erred in imposing that sentence based on facts that were not found by a jury or admitted by defendant, in violation of his rights under the Sixth Amendment to the United States Constitution.

Although defendant did not advance such a challenge to the trial court, he argues that the sentence should be reviewed as plain error. We agree. See State v. Ramirez, 205 Or App 113, 133 P3d 343 (2006). For the reasons set forth in Ramirez, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.


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