concurring in part; dissenting in part.
I agree with the majority that “mandatory minimum sentence” as used in ORS 161.620 prohibits a minimum sentence that the court, by statute, , is required to impose, except the minimum sentence mandated by ORS 163.105(1) for aggravated murder. Accordingly, the 10-year sentence imposed on defendant is prohibited.1
However, I do not agree that the 15-year sentence was permissible under ORS 161.620. Defendant was convicted of murder. ORS 163.115(3) provides:
“ (a) A person convicted of murder shall be punished by imprisonment for life.
*240“(b) When a defendant is convicted of murder under this section, the court shall order that the defendant shall be confined for a minimum of 10 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.
“(c) When a defendant is convicted of murder under this section, the court, in addition to the minimum required by paragraph (b) of this subsection, may order that the defendant shall be confined for a minimum term of up to an additional 15 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.
. “(d) The minimum term set forth in paragraph (b) or (c) of this subsection may be set aside by a unanimous vote of the State Board of Parole and Post-Prison Supervision.” (Emphasis supplied.)
Although the additional 15-year minimum sentence that the court imposed under subsection (3)(c) is not one that the court was required to impose, that subsection presumes that the court has also imposed the mandatory 10-year minimum under subsection (3)(b). Because the presumed 10-year minimum is not permissible here, the predicate for the “additional” 15-year minimum is lacking, and the court was not authorized to impose it.
Accordingly, I would reverse both minimum sentences.
Warren and Edmonds, JJ., concur in this opinion.I also agree that State v. Noble, 94 Or App 123, 764 P2d 949 (1988), rev dismissed 307 Or 506 (1989), should be overruled in part.