FILED: June 22, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JERRY SIMS,

Appellant.

02CR0735FE; A125239

Appeal from Circuit Court, Douglas County.

William L. Lassell, Judge.

Submitted on record and briefs May 23, 2005.

Peter A. Ozanne, Executive Director, and Dan Maloney, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, 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 first-degree theft. The trial court imposed a durational departure sentence based on findings of persistent involvement in similar offenses unrelated to the crime and harm or loss significantly greater than typical. On appeal, defendant argues that the 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 decisions in State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), and State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), defendant is correct. We accept the concession.

Sentence vacated; remanded for resentencing; otherwise affirmed.


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