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Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.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Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.


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