FILED: January 30, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

STANLEY LEE MILLER,

Defendant-Appellant.

Josephine County Circuit Court
01CR0698; A126149

George A. Van Hoomissen, Senior Judge.

On appellant's petition for reconsideration filed September 7, 2007, and respondent's response to defendant's petition for reconsideration filed November 19, 2007. Opinion filed August 22, 2007. 214 Or App 494, 166 P3d 591.

Jesse Wm. Barton for petition.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Timothy A. Sylwester, Attorney-in-Charge, Capital Appeals, for response.

Before Landau, Presiding Judge, and Schuman, Judge, and Simpson, Judge pro tempore.

PER CURIAM

Reconsideration allowed; former opinion modified and adhered to as modified; disposition withdrawn; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant petitions for reconsideration of our opinion, State v. Miller, 214 Or App 494, 166 P3d 591 (2007), in which we rejected his contentions that the trial court erred in denying his motion for substitute counsel, in instructing the jury that it could convict by less than a unanimous jury, and in imposing consecutive sentences without submitting to a jury findings that are necessary to support such a sentence. On reconsideration, he first argues that we erred in rejecting the first of those contentions. We reject that argument without discussion. He also argues that, in light of the Supreme Court's subsequent decision in State v. Ice, 343 Or 248, 170 P3d 1049 (2007), we should reconsider our determination that the trial court did not err in imposing consecutive sentences without jury findings to support the sentences. On that point, we agree with defendant. In Ice, the Supreme Court concluded that the federal constitution requires that a jury, rather than a judge, find facts that Oregon law requires be present before a judge can impose consecutive sentences. Id. at 267. In light of Ice, we must remand for resentencing.

Reconsideration allowed; former opinion modified and adhered to as modified; disposition withdrawn; remanded for resentencing; otherwise affirmed.


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