FILED: June 22, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

KEVIN LEE SMITHERMAN,

Appellant.

0305-32234; A123215

Appeal from Circuit Court, Multnomah County.

Jerome LaBarre, Judge.

Submitted on record and briefs May 23, 2005.

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

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Brewer, Chief Judge,* and Armstrong, Judge.

PER CURIAM

Sentence vacated; remanded for resentencing; otherwise affirmed.

*Brewer, C. J., vice Ceniceros, S. J.

PER CURIAM

Defendant was convicted of felony assault in the fourth degree. The trial court imposed a departure sentence based on findings of deliberate cruelty, a particularly vulnerable victim, persistent involvement in similar crimes, and defendant's failure to accept responsibility for his conduct. The trial court also imposed an order of restitution in the amount of $740.

On appeal, defendant argues that the departure sentence is unlawful because it is based on facts not admitted or found by a jury, in violation of Blakely v. Washington, 542 US ___, 124 S Ct 2531, 159 L Ed 2d 403 (2004). The state concedes that, in light of our decision in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), defendant is correct. We accept the concession.

Defendant challenges the order of restitution on similar grounds. We need not address defendant's argument, however, in light of the scope of our remand. ORS 138.222(5); State v. Edson, 329 Or 127, 985 P2d 1253 (1999).

Sentence vacated; remanded for resentencing; otherwise affirmed.


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