Court of Appeals of Oregon, 2003

State v. Drew

Court of Appeals of Oregon · Decided July 16, 2003 · Brewer, Wollheim, Kistler

72 P.3d 1064; 188 Or. App. 665; 2003 Ore. App. LEXIS 897 (Pacific Reporter, Third Series)

Opinion

*666 PER CURIAM

The parties jointly move for an order vacating the judgment and remanding this case for resentencing. ORS 138.227(1). 1 We grant the motion.

Defendant was convicted on three separate counts, including the unlawful use of a weapon, ORS 166.220, which is a Class C felony. Pursuant to ORS 161.610(4)(a), the trial court imposed a sentence of five years’ imprisonment and 24 months’ post-prison supervision. That sentence exceeds the statutory maximum of five years for a Class C felony because a sentence includes incarceration and post-prison supervision. Pursuant to ORS 138.222(5), the judgment is vacated and the case is remanded for resentencing.

Joint motion for order vacating judgment granted; judgment vacated; case remanded for resentencing; otherwise affirmed.

ORS 138.227(1) provides, in part:

“Upon joint motion of the parties to an appeal in a criminal action, the court may vacate the judgment * * * and remand the matter to the trial court to reconsider the judgment * * *. Upon remand, the trial court shall have jurisdiction to enter a revised judgment or order.”

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