FILED: August 31, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

BRIAN LYNN SCHAEFER,

Appellant.

0109-50140; A125518

Appeal from Circuit Court, Multnomah County.

Eric J. Bloch, Judge.

Submitted on record and briefs July 28, 2005.

Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, and Mary-Shannon Storey, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

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

Before Landau, Presiding Judge, and Schuman* and Ortega, Judges.

PER CURIAM

Appeal dismissed as moot.

*Schuman, J., vice Richardson, S. J.

PER CURIAM

Defendant was convicted of driving under the influence of intoxicants and placed on three years' enhanced bench probation. Defendant later violated the conditions of his probation, the court revoked probation, and it executed a sentence of 12 months' incarceration. At sentencing, the court also stated to defendant that "you have shown * * * a propensity to combine substance abuse and driving which, of course, is a deadly combination. Based upon all of this, I do find you, as you sit before me today, to be a risk to the community and deny you 936 credits," that is, consideration for early release and sentence reductions under ORS 137.750 and ORS 137.752.

On appeal, defendant challenges the sentence, arguing 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 ordering that defendant not be considered for early release or sentence reduction programs based on facts that defendant did not admit and that the court did not submit to a jury. He concedes that he did not advance such a challenge to the trial court, but argues that the sentence should be reviewed as plain error.

In the meantime, however, defendant has notified us that more than a year has passed since the trial court sentenced him to one year of incarceration and that the case therefore has become moot. The state has not contested that.

Appeal dismissed as moot.


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