STATE of Oregon, Respondent,
v.
Joshua G. HEATH, Appellant.
CR02-0009A; A120233.
Court of Appeals of Oregon.
Submitted on Record and Briefs June 28, 2005. Decided August 3, 2005.John L. Collins, Judge.
James N. Varner, Dundee, filed the briefs for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Assistant Attorney General, filed the briefs for respondent.
Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ORTEGA, Judge.
PER CURIAM.
Defendant appeals his conviction on one count of assault in the second degree, ORS 163.175, and his upward departure sentences on two counts of criminal mistreatment in the first degree, ORS 163.205, based on the sentencing court's findings that defendant knew or had reason to know of the victim's particular vulnerability and that the offense involved a violation of public trust or professional responsibility. We reject without discussion defendant's challenge to his conviction. Defendant argues that the imposition of departure sentences violated the rule of law announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), that sentencing departure factors other than facts of prior conviction or facts admitted by the defendant must be submitted to a jury. Although defendant did not preserve his challenge, we have held that such error is apparent on the face of the record. State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005). For the reason set forth in Perez, we exercise our discretion to correct the error.
Sentences vacated; remanded for resentencing; otherwise affirmed.