
    Argued and submitted January 7,
    conviction affirmed; remanded for resentencing February 27, 1991
    STATE OF OREGON, Respondent, v. KEVIN LEE PENN, Appellant.
    
    (C89-10-35795; CA A64779)
    805 P2d 755
    Donald P. Roach, Portland, argued the cause and filed the brief for appellant.
    Carol J. Fredrick, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
    Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
    PER CURIAM
   PER CURIAM

Defendant appeals his conviction for robbery in the first degree. The trial court imposed a minimum sentence of five years under ORS 161.610. The statute requires that minimum when a defendant is convicted of a felony “having as an element the defendant’s use or threatened use of a firearm.” ORS 161.610(4). The state concedes that the imposition of the minimum was error, because robbery in the first degree does not require the use or threatened use of a deadly weapon and defendant was not charged in the indictment with using or threatening to use a firearm. We accept the state’s concession.

The trial court properly denied defendant’s motion for judgment of acquittal.

Conviction affirmed; remanded for resentencing.  