State v. Maddox , 204 Or. App. 421 ( 2006 )

PER CURIAM

Defendant was convicted of two counts of delivery of a Schedule II controlled substance, and two counts of possession of a Schedule I controlled substance. ORS 475.992. On appeal, he argues that the trial court erred when it denied his motion to suppress evidence found in his vehicle. We reject defendant’s arguments on that issue without discussion.

Defendant also challenges the trial court’s imposition of an upward departure sentence on one of the counts of delivery of a Schedule II controlled substance. He argues that the trial court’s upward departure sentence was erroneous under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), andApprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), because it was based on facts that were neither admitted by defendant nor found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Allen, 198 Or App 392, 108 P3d 651, adh’d to as clarified on recons, 202 Or App 565 (2005), the trial court’s upward departure, based on its finding that defendant was “on supervision and bail,” is plainly erroneous. For the reason set forth in Allen, we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.