STATE v. HEGSTROM (1997)

Defendant was convicted of rape in the first degree (count 1, ORS 163.375), sodomy in the first degree (count 2, ORS 163.405) and two counts of sexual abuse in the first degree (counts 3 and 4, ORS 163.427).  Defendant assigns error to the trial court's application of ORS 137.635 to his sodomy conviction.   That statute provides that, when a court sentences a convicted defendant on any of a list of enumerated felonies, and that defendant “has previously been convicted” of any of those felonies, the court must impose a determinate sentence that is not subject to reduction or parole.   In this case, the trial court treated defendant's conviction on count 1 as a previous conviction for the purposes of sentencing defendant on count 2 under ORS 137.635.   In doing so, the trial court erred.  ORS 137.635 applies when a person who has been found guilty of one of the crimes listed in that statute already has been convicted of one of those crimes before committing the crime for which he or she is to be sentenced.  State v. Allison, 143 Or.App. 241, 256, 923 P.2d 1224, rev. den 324 Or. 487, 930 P.2d 852 (1996).   We have considered defendant's other assignment of error and reject it without discussion.

Convictions affirmed;  remanded for resentencing.

 PER CURIAM.