State v. Drew , 188 Or. App. 665 ( 2003 )

72 P.3d 1064 (2003) 188 Or. App. 665

STATE of Oregon, Respondent,
v.
David Loren DREW, Appellant.

0103-32132; A118050

Court of Appeals of Oregon.

June 19, 2003. Decided July 16, 2003.

Jamesa J. Drake, Deputy Public Defender, and Jonathan Fussner, Assistant Attorney General, for motion.

Before BREWER, Presiding Judge, and WOLLHEIM and KISTLER, Judges.

On Appellant's and Respondent's Joint Motion to Vacate and Remand June 19, 2003.

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.

NOTES

[1] 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."