FILED: September 3, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KELLY STEVEN LINENKO,

Defendant-Appellant.

Marion County Circuit Court
06C49491; A134845

Tracy A. Prall, Judge pro tempore.

Submitted on August 01, 2008.

Peter Gartlan, Chief Defender, Legal Services Division, and Marc D. Brown, Deputy Public Defender, Office of Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals, filed the brief for respondent.

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

PER CURIAM

Remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals a judgment of conviction for one count of felony driving while under the influence of intoxicants (DUII). ORS 813.010 (2005). He assigns error to the imposition of a sentence that he contends exceeds the maximum sentence for the offense. Defendant pleaded guilty to the offense. The trial court imposed an upward departure sentence of 60 months in prison and 12 months of post-prison supervision--a total of 72 months. On appeal, defendant contends that, because felony DUII is a Class C felony, the statutory maximum sentence is 60 months. ORS 161.605. The state concedes the error. We agree that the trial court erred. See OAR 213-005-0002(4) (the total of prison and post-prison supervision may not exceed the statutory maximum indeterminate sentence).

Remanded for resentencing; otherwise affirmed.


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