FILED: June 10, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KEVIN MITCHELL BUMGARNER,

Defendant-Appellant.

Douglas County Circuit Court
03CR1425FE
A126264

Ronald Poole, Judge.

On respondent's petition for reconsideration filed March 19, 2009.  Opinion filed May 7, 2008.  219 Or App 617, 184 P3d 1143.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, Criminal Appeals, for petition.

Before Wollheim, Presiding Judge, and Armstrong, Judge, and Sercombe, Judge.

PER CURIAM

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.

PER CURIAM

The state petitions this court to reconsider its decision in State v. Bumgarner, 219 Or App 617, 184 P3d 1143, rev den, 345 Or 175 (2008), cert den, ___ US  ___ 129 S Ct 927 (2009).  In Bumgarner, we affirmed defendant's convictions but remanded for resentencing.  The state now contends that, in light of Oregon v. Ice, ___ US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009), we erred in remanding for resentencing.  We agree and, accordingly, modify our opinion and affirm.

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.


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