FILED: May 27, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KEVIN RICHARD BERG,

Defendant-Appellant.

Lake County Circuit Court
040076CR, 040062CR, 040188CR
A128652 (Control)
A128653, A128654

Rodger J. Isaacson, Judge.

On respondent's petition for reconsideration filed March 19, 2009.  Opinion filed October 29, 2008.  223 Or App 387, 196 P3d 547.

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

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

PER CURIAM

Reconsideration allowed; former opinion modified and adhered to as modified.

PER CURIAM

The state petitions for reconsideration.  In State v. Berg, 223 Or App 387, 196 P3d 547 (2008), we affirmed defendant's conviction but remanded for resentencing in light of State v. Ice, 343 Or 248, 170 P3d 1049 (2007), rev'd and rem'd, 555 US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009).  The state now argues that, in light of the United States Supreme Court's decision in Ice, our remand for resentencing was erroneous.  The state is correct.  This case is controlled by Oregon v. Ice.  Accordingly, we modify our opinion and affirm.

Reconsideration allowed; former opinion modified and adhered to as modified.


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