FILED: September 21, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

LARRY DANIEL PERKINS,

Appellant.

03CR1814; A124017

Appeal from Circuit Court, Coos County.

Martin E. Stone, Judge.

Submitted on record and briefs August 17, 2005.

James N. Varner filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Solicitor General, filed the brief for respondent.

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

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of one count of assaulting a public safety officer, ORS 163.208, and one count of resisting arrest, ORS 162.315. He received an upward departure sentence of 18 months on the conviction for assaulting a public safety officer, based on a finding of persistent involvement in similar offenses. 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 the fact of a 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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