Defendant appeals his conviction for robbery in the first degree. The trial court imposed a minimum sentence of five years under ORS 161.610. The statute requires that minimum when a defendant is convicted of a felony “having as an element the defendant’s use or threatened use of a firearm.” ORS 161.610(4). The state concedes that the imposition of the minimum was error, because robbery in the first degree does not require the use or threatened use of a deadly weapon and defendant was not charged in the indictment with using or threatening to use a firearm. We accept the state’s concession.

The trial court properly denied defendant’s motion for judgment of acquittal.

Conviction affirmed; remanded for resentencing.