Opinion
87-10-36098, C87-11-36752; CA A63950 (Control), CA A63951 (Cases Consolidated)
Argued and submitted August 30, 1991.
Convictions affirmed; sentence on charge violating ORS 165.055 Vacated and remanded for resentencing October 9, 1991
Appeal from Circuit Court, Multnomah County, Robert W. Redding, Judge.
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.
Yuanxing Chen, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.
PER CURIAM
Convictions affirmed; sentence on charge of violating ORS 165.055 vacated; remanded for resentencing.
In this consolidated appeal, defendant challenges the sentences entered after she pled guilty to charges of fraudulent use of a credit card, ORS 165.055, theft in the second degree, ORS 164.045, and two counts of forgery in the first degree. ORS 165.013. Our review of the trial court's action is limited to determining whether the sentences exceed the maximum allowable by law or are cruel and unusual. ORS 138.050(1)(a).
The state concedes that the trial court exceeded its authority when it imposed a five-year term of imprisonment with a 30-month minimum on the charge of fraudulent use of a credit card. Defendant pled guilty to credit card fraud to obtain money "in an amount less than [$200]." Under ORS 165.055(3)(a), fraudulent use of a credit card to obtain that amount of money is a class A misdemeanor, for which the maximum sentence of imprisonment is one year. ORS 161.615(1). We accept the state's concession and, accordingly, vacate the sentence on that conviction and remand for resentencing.
Defendant correctly acknowledges that the other individual sentences imposed here are within the maximum allowable by statute.
We decline to review defendant's argument that the trial court erred in imposing consecutive sentences on her convictions, State v. Racicot, 106 Or. App. 557, 809 P.2d 726 (1991), because she did not preserve the question below.
Convictions affirmed; sentence on the charge of violating ORS 165.055 vacated; remanded for resentencing.