STATE v. BUMGARNER, 229 Or. App. 92 (2009)

209 P.3d 857

STATE OF OREGON, Plaintiff-Respondent, v. KEVIN MITCHELL BUMGARNER, Defendant-Appellant.

Nos. 03CR1425FE; A126264.Oregon Court of Appeals.
June 10, 2009.

Appeal from the Douglas County Circuit Court, Ronald Poole, Judge.

On respondent’s petition for reconsideration filed March 19, 2009. Opinion filed May 7, 2008. 219 Or App 617, 184 P3d 1143.

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

Before WOLLHEIM, Presiding Judge, and ARMSTRONG, Judge, and SERCOMBE, Judge.

PER CURIAM

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.

Page 93

PER CURIAM

The state petitions this court to reconsider its decision in State v. Bumgarner, 219 Or App 617, 184 P3d 1143 rev den, 345 Or 175 (2008), cert den, ___ US ___ 129 S Ct 927 (2009). In Bumgarner, we affirmed defendant’s convictions but remanded for resentencing. The state now contends that, in light of Oregon v. Ice, 555 US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009), we erred in remanding for resentencing. We agree and, accordingly, modify our opinion and affirm.

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; affirmed.

Page 94