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FILED: April 1, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

DAVID LEROY DAY,

Defendant-Appellant.

Clackamas County Circuit Court
CR0101215
A117331

On remand from the Oregon Supreme Court, State v. Day, 345 Or 315, 195 P3d 62 (2008).

Alan R. Jack, Senior Judge.

Submitted on remand October 28, 2008.

David E. Groom for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jeff J. Payne, Assistant Attorney General, for respondent.

Before Landau, Presiding Judge, and Brewer, Chief Judge, and Haselton, Judge.

BREWER, C. J.

Remanded for resentencing; otherwise affirmed.

BREWER, C. J.

This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Day, 201 Or App 215, 116 P3d 952 (2005) (Day I), in light of State v. Ramirez, 343 Or 505, 173 P3d 817 (2007), adh'd to as modified on recons, 344 Or 195, 179 P3d 673 (2008), and State v. Fults, 343 Or 515, 173 P3d 822 (2007).