State v. Wright ( 1983 )

BUTTLER, P. J.,

dissenting.

Because defendant was entitled to have the trial court exercise its discretion and not be precluded from doing so as a matter of law, I would reverse and remand to permit the trial court to consider defendant’s petition for diversion.

In State v. Grenvik, 291 Or 99, 628 P2d 1195 (1981), the court held that the constitutional validity of a prior conviction used to enhance a subsequent offense may be challenged in the subsequent prosecution. The state contends here that Grenvik is not controlling, because the prior conviction was not used to enhance this offense. That contention ignores the fact that, if defendant’s petition for diversion had been granted and if he had successfully completed the diversion program, he would have been entitled to have the present DUII charge dismissed. ORS 484.470. Having been denied diversion, defendant was subjected to a jail term, to which he was sentenced after he was found guilty. To me, that sounds like enhancement within the meaning of Grenvik, and it certainly constitutes as much enhancement as existed in State v. Mattila, 52 Or App 743, 629 P2d 845 (1981), where the inmate’s parole release date could be affected by prior convictions, the validity of which he challenged.

The only evidence here is that defendant was entitled to the assistance of counsel in connection with the prior DUII charge, did not have it and did not waive it. As the court said in Grenvik:

“There is no evidence of waiver of counsel. A valid waiver will not be presumed from a silent record. * * *” 291 Or at 102.

Although the granting of a petition for diversion is discretionary with the trial court, there is no discretion to grant diversion if the defendant has been convicted of the offense of driving of DUII within ten years before the date of the present offense. Because the trial court relied solely on the prior conviction to deny the petition as a matter of law, I would reverse and remand to the trial court for reconsideration of defendant’s petition, using the discretionary standards set out in ORS 484.455.

Accordingly, I respectfully dissent.