FILED: April 28, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JAMES LANE SULLIVAN,

Defendant-Appellant.

Polk County Circuit Court
07P3334
A138325

William M. Horner, Judge.

On respondent's petition for reconsideration filed March 17, 2010, and on appellant's response to state's petition for reconsideration filed March 23, 2010.  Opinion filed March 03, 2010.  234 Or App 38, ___ P3d ___.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, for petition.

Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services, for response.

Before Sercombe, Presiding Judge, and Brewer, Chief Judge, and Deits, Senior Judge.

PER CURIAM

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

PER CURIAM

The state petitions for reconsideration of our decision in State v. Sullivan, 234 Or App 38, ___ P3d ___ (2010), asserting that the court made a factual error that led to an erroneous remand for resentencing.

On reconsideration, we agree with the state that the opinion contains a typographical error, and accordingly, make one modification to the recitation of facts in the opinion.  We stated, "The judgment that the court entered did not merge the second-degree assault conviction into the first-degree assault conviction, but rather imposed consecutive sentences on those convictions."  Id. at 41.  We withdraw that sentence and replace it with the following:  "The judgment that the court entered did not merge the second-degree assault conviction into the first-degree assault conviction, but rather imposed concurrent sentences on those convictions."

Contrary to the state's argument, that typographical error did not affect our disposition.  ORS 138.222(5).  We reject without discussion the state's remaining arguments on reconsideration.

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


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