STATE of Oregon, Respondent,
v.
Joshua Gunner JOHNSON, Appellant.
20-02-14420A; A121219.
Court of Appeals of Oregon.
Submitted on Record and Briefs April 10, 2006. Decided May 31, 2006.Patrick M. Ebbett filed the brief for appellant. With him on the brief was Chilton, Ebbett & Rohr, LLC.
*72 Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Solicitor General, filed the brief for respondent.
Before EDMONDS, Presiding Judge, and LINDER[*] and WOLLHEIM, Judges.
PER CURIAM.
After a trial to a jury, defendant was convicted of first-degree robbery with a firearm, first-degree burglary, and second-degree assault. On the conviction for first-degree robbery with a firearm, the trial court imposed a durational departure sentence of 120 months' imprisonment and 36 months' post-prison supervision based on its findings that defendant was on supervision at the time of the offense and that the crimes escalated in nature. On appeal, defendant argues that the departure sentence violated the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it was based on facts that were not admitted by defendant or found by a jury. Although defendant did not advance such a challenge below, he argues that the sentence should be reviewed as plain error. Under our decision in State v. Ramirez, 205 Or.App. 113, 133 P.3d 343 (2006), the sentence is plainly erroneous. For the reason set forth in Ramirez, we exercise our discretion to correct the error.
Sentences vacated; remanded for resentencing; otherwise affirmed.
NOTES
[*] Linder, J., vice Richardson, S.J.