FILED: May 13, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

RANDOLPH DEL CALHOUN NELSON,

Defendant-Appellant.

Linn County Circuit Court
05122607
A134393

Rick J. McCormick, Judge.

On respondent's petition for reconsideration filed March 19, 2009.  Opinion filed December 3, 2008.  224 Or App 193, 197 P3d 1130.

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 Landau, Judge, and Schuman, Judge.

PER CURIAM

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.

PER CURIAM

The state petitions for reconsideration in State v. Nelson, 224 Or App 193, 197 P3d 1130 (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 sub nom Oregon v. Ice, 555 US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009).  The state now argues that, in light of the United State's Supreme Court's decision in Ice, our remand for resentencing was erroneous.  The state is correct that the case is now controlled by that decision.  Accordingly, we modify our opinion and affirm.

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.


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