State v. DIAZ-RIVERA , 235 Or. App. 179 ( 2010 )

230 P.3d 101 (2010) 235 Or. App. 179

STATE of Oregon, Plaintiff-Respondent,
v.
Gregoria DIAZ-RIVERA, Defendant-Appellant.

08C41113; A139086.

Court of Appeals of Oregon.

Submitted March 25, 2010. Decided April 28, 2010.

Peter Gartlan, Chief Defender, and Joshua B. Crowther, Senior Deputy Public Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Linda Wicks, Assistant Attorney General, filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.

PER CURIAM.

Defendant was convicted of delivery of methamphetamine, ORS 475.890, delivery of cocaine, ORS 475.880, delivery of heroin, ORS 475.850, and child neglect in the first degree, ORS 163.547. She contends on appeal that the sentence imposed by the trial court violated OAR XXX-XXX-XXXX. Although she did not preserve the issue before the trial court, she argues we should consider it as plain error. The state concedes that the trial court plainly erred in imposing a sentence in violation of OAR XXX-XXX-XXXX. We agree, accept that concession, exercise our discretion to review the error, and conclude that the case must be remanded for resentencing. See State v. Davidson, 208 Or.App. 672, 673, 145 P.3d 276 (2006) (treating similar sentencing error as plain error and exercising discretion to correct it); see also State v. Rodvelt, 187 Or.App. 128, 136, 66 P.3d 577, rev. den., 336 Or. 17, 77 P.3d 320 (2003) (where an error requires resentencing, entire case must be remanded for resentencing).

Remanded for resentencing; otherwise affirmed.