State v. Berg , 228 Or. App. 754 ( 2009 )

208 P.3d 1006 (2009) 228 Or. App. 754

STATE of Oregon, Plaintiff-Respondent,
v.
Kevin Richard BERG, Defendant-Appellant.

040076CR, 040062CR and 040188CR; A128652, (Control) A128653, A128654.

Court of Appeals of Oregon.

Decided May 27, 2009. On Respondent's Petition for Reconsideration March 19, 2009.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Paul L. Smith, Assistant Attorney-in-Charge, Criminal Appeals, for petition.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

PER CURIAM.

The state petitions for reconsideration. In State v. Berg, 223 Or.App. 387, 196 P.3d 547 (2008), we affirmed defendant's conviction but remanded for resentencing in light of State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), rev'd and rem'd, 555 U.S. ___, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). The state now argues that, in light of the United States Supreme Court's decision in Ice, our remand for resentencing was erroneous. The state is correct. This case is controlled by Oregon v. Ice. Accordingly, we modify our opinion and affirm.

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