FILED: May 20, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

RICHARD CARL BIGHOUSE,
aka RICHARD EARL BIGHOUSE,

Defendant-Appellant.

Washington County Circuit Court
C033240CR, C040163CR, C041507CR
A126980 (Control)
A126981
A126982

En Banc

Timothy P. Alexander, Senior Judge.

On respondent's petition for reconsideration filed March 19, 2009.  Opinion filed October 22, 2008.  223 Or App 261, 196 P3d 538.

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

Before Brewer, Chief Judge, and Edmonds, Landau, Haselton, Armstrong, Wollheim, Schuman, Ortega, Rosenblum, and Sercombe, Judges.

PER CURIAM

Reconsideration allowed; former opinion modified and adhered to as modified; former disposition withdrawn; affirmed.

PER CURIAM

The state seeks reconsideration of our decision in State v. Bighouse, 223 Or App 261, 196 P3d 538 (2008).  In Bighouse, we affirmed defendant's convictions but remanded for resentencing.  The state now contends that, in light of Oregon v. Ice, 555 US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009), we erred in concluding that the imposition of consecutive sentences under ORS 137.123(5) requires findings by a jury rather than a judge.  We agree and, accordingly, modify our opinion and affirm.

Reconsideration allowed; former opinion modified and adhered to as modified; former disposition withdrawn; affirmed.


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