State v. Weiss
Docket: 03-07-33207; A123325
Court: Court of Appeals of Oregon; December 28, 2005; Oregon; State Appellate Court
Defendant Jimmy Arthur Weiss, Jr. was convicted of unauthorized use of a vehicle and possession of a stolen vehicle. The trial court classified him as a repeat property offender under ORS 137.717 due to his prior criminal history and imposed departure sentences, citing his probation status at the time of the offense and a history of similar offenses. On appeal, Weiss contested the sentences, arguing that the court violated his rights under Blakely v. Washington and Apprendi v. New Jersey by treating him as a repeat offender based on facts not admitted by him or established by a jury. Although Weiss acknowledged he did not raise this objection in the trial court, he requested plain error review. The state conceded that the departure sentences were plainly erroneous based on precedents established in State v. Gornick and State v. Perez. The court accepted the state's concession, vacated the sentences, and remanded the case for resentencing while affirming other aspects of the trial court's decision.