STATE v. BIRCHARD, 105 Or. App. 402 (1991)

804 P.2d 1225

STATE OF OREGON, Respondent, v. JAMES THOMAS BIRCHARD, Appellant.

CF89-25, CF89-26; CA A62159 (Control), A62160Oregon Court of Appeals.Argued and submitted December 21, 1990,
Convictions affirmed; remanded for resentencing January 23, 1991. Reconsideration denied May 1, 1991. Petition for review denied May 28, 1991 (311 Or. 427)

Appeal from Circuit Court, Umatilla County, J.F. Olsen, Judge.

Ingrid A. MacFarlane, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was. Sally L. Avera, Public Defender, Salem.

Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.

PER CURIAM

Convictions affirmed; remanded for resentencing.

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PER CURIAM

Defendant was charged and convicted in Umatilla County for attempted murder and attempted first degree robbery. At the sentencing on those convictions, the trial court imposed two mandatory minimum five-year sentences for the use of a gun under ORS 161.610. The state concedes that the trial court erred in imposing the second “gun minimum.” State v. Haywood, 73 Or. App. 6, 697 P.2d 977 (1985). We agree. See State v. Birchard (A62487), 105 Or. App. 400, 804 P.2d 1224 (1991).

Although the sentences imposed were concurrent and no error was preserved, there may be collateral consequences as a result of imposition of the second five-year minimum. Therefore, we remand for resentencing. State v. Brown, 310 Or. 347, 800 P.2d 259 (1990).

There is no merit in defendant’s other assignments of error.

Convictions affirmed; remanded for resentencing.

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