State v. Nickel ( 1987 )

RICHARDSON, P. J.

The state moves for reconsideration of our decision, 83 Or App 508, 732 P2d 88 (1987), and to supplement the record to include an audio tape of part of the proceedings not included in the record originally forwarded to this court. We allow inclusion of the audio tape in the record, grant reconsideration, withdraw our former opinion and affirm the judgment.

Defendant’s notice of appeal designated for inclusion in the record “a copy of the audio record of all proceedings related to this case.” The audio tapes forwarded to the court did not include the record of the hearing on defendant’s motion for diversion under former ORS 484.445. It should have been included in the original record. We treat the state’s motion as one to correct the record and allow it.

Defendant appealed her conviction for driving under the influence of intoxicants. She contended that the trial court impermissibly refused to consider her petition to participate in a diversion program under former ORS 484.445 on the grounds that the request was made after trial and that diversion could not be granted after a conviction. We said:

“It is not entirely clear from the trial record whether the court denied defendant’s diversion request because it was made subsequent to trial, as defendant argues, or on its merits.”

Because we could not determine if the court had denied the request on its merits, we reversed and remanded for consideration of the petition for diversion, citing State v. Ewen, 77 Or App 274, 712 P2d 183 (1986).

It is clear, now that the record has been corrected, that the trial court denied the request for diversion on its merits. Defendant does not contend that the court abused its discretion in denying the request.

Motion to supplement the record and motion for reconsideration allowed; former opinion withdrawn; affirmed.