STATE v. BEATY, 117 Or. App. 525 (1992)

842 P.2d 817

STATE OF OREGON, Respondent, v. MONTE DEAN BEATY, Appellant.

91-3312-C1; CA A73150Oregon Court of Appeals.Submitted on record and briefs December 2, 1992
Conviction affirmed; remanded for resentencing December 30, 1992

Appeal from Circuit Court, Jackson County.

L.A. Merryman, Judge.

Sally L. Avera, Public Defender, and Louis R. Miles, Deputy Public Defender, Salem, filed the brief for appellant.

Charles S. Crookham, Attorney General, Virginia L. Linder, Solictor General, and J. Dean Taylor, Assistant Attorney General, Salem, filed the brief for respondent.

Before Richardson, Presiding Judge, and Joseph, Chief Judge, and Deits, Judge.

PER CURIAM

Conviction affirmed; remanded for resentencing.

Page 526

PER CURIAM

Defendant challenges the sentence imposed after his conviction for manufacture of a controlled substance. ORS 475.992(1). The trial court ordered that no credit for time served in jail be applied. The state concedes that the trial court erred. State v. Jones, 113 Or. App. 228, 229, 832 P.2d 459 (1992).

We accept the concession that the case should be remanded for resentencing. However, the record does not show definitively that defendant’s pre-trial incarceration was for the manufacturing crime. On remand, the sentencing court should make that determination and resentence defendant accordingly. State v. Barber, 113 Or. App. 603, 605, 832 P.2d 51 (1992).

Conviction affirmed; remanded for resentencing.

Page 527