State v. Gutierrez

Defendant petitions for reconsideration of our previous opinion in this case. State v. Gutierrez, 197 Or App 496, 106 P3d 670 (2005). Specifically, he asks that we reconsider our rejection of his assignment of error asserting that the trial court imposed a departure sentence in violation of Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). We allow reconsideration, modify our former opinion and adhere to it as modified.

Defendant was convicted of four offenses. At sentencing, the trial court imposed a five-year term of probation for Count 4, which defendant did not…