FILED: June 10, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Appellant,

v.

BRIAN SCOTT TRAUTWEIN,

Defendant-Respondent,

Benton County Circuit Court
CM0520181
A129516

Locke A. Williams, Judge.

On appellant's petition for reconsideration filed March 19, 2009.  Decision filed January 9, 2008.  217 Or App 429, 175 P3d 1028.

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 Edmonds, Judge, and Sercombe, Judge.

PER CURIAM

Reconsideration allowed; former disposition withdrawn; remanded for resentencing.

PER CURIAM

The state petitions this court to reconsider its decision in State v. Trautwein, 217 Or App 429, 175 P3d 1028 (2008).  In Trautwein, a state's appeal, the state argued that the trial court had erred in ruling that the imposition of consecutive sentences under ORS 137.123(5) would have violated defendant's right to a jury trial under the Sixth Amendment to the United States Constitution.  We affirmed without opinion.  The state now contends that, in light of Oregon v. Ice, 555 US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009), our previous decision was incorrect.  We agree and, accordingly, withdraw our former decision and remand for resentencing.

Reconsideration allowed; former disposition withdrawn; remanded for resentencing.


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