Gaines v. Cupp

PER CURIAM Petitioner seeks review of a judgment denying post-conviction relief. We reverse. Petitioner was sentenced in two unrelated cases which had been tried seriatim before the same judge. Each case involved the use of a firearm, and the court imposed a five-year minimum sentence pursuant to ORS 161.610 in each case, to be served consecutively. By a variety of means, petitioner challenges the imposition of two five-year sentences under ORS 161.610. The state concedes, and we agree, that in the light of State v. Hardesty, 298 Or 616, 695 P2d 569 (1985), and State v. Haywood, 73 Or App 6, 697 P2d 977 (1985), one of the sentences is incorrect. Judgment dismissing the petition for post-conviction relief is reversed, and the case is remanded with instructions to modify the judgment in one of the underlying cases by deleting the five-year minimum sentence.