STATE v. CROCKRELL, 117 Or. App. 357 (1992)

844 P.2d 239

STATE OF OREGON, Respondent, v. WESLEY RAYMOND CROCKRELL, Appellant.

10-91-08474; CA A73594Oregon Court of Appeals.Argued and submitted November 30, 1992
Remanded for resentencing in part; otherwise affirmed December 23, 1992

Appeal from Circuit Court, Lane County.

Gregory G. Foote, Judge.

Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Timothy L. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.

PER CURIAM

Remanded for resentencing on conviction for rape in the first degree; otherwise affirmed.

Page 358

PER CURIAM

Defendant was convicted of rape in the first degree and sexual abuse in the first degree. ORS 163.375; ORS 163.427. He argues that the court erred in first sentencing him on the sexual abuse conviction and then using that conviction to increase his criminal history score on the rape conviction. The state concedes that, under State v. Seals, 113 Or. App. 700, 833 P.2d 1344
(1992), and State v. Bucholz, 113 Or. App. 705, 834 P.2d 456
(1992), defendant is correct. It argues that the remedy is to remand both convictions for resentencing. Resentencing is required on the conviction for rape that was erroneously imposed. There is no error to correct in the sentence for the conviction for sexual abuse. State v. Smith, 116 Or. App. 558, 842 P.2d 805
(1992).

Remanded for resentencing on conviction for rape in the first degree; otherwise affirmed.

Page 359