State v. Granger ( 1993 )

PER CURIAM

The state moves for reconsideration of our previous decision, 113 Or App 394, 830 P2d 639 (1992), reversing defendant’s two drug convictions and remanding with instructions for the trial court to dismiss the indictment pursuant to our holding in State v. Moeller, 105 Or App 434, 806 P2d 130, rev dismissed 312 Or 76, 815 P2d 701 (1991). We allow the motion for reconsideration.

In State v. Ferrell, 315 Or 213, 843 P2d 939 (1992), the court held that, where the defect in the indictment related to an allegation that does not affect the validity of the underlying charge, the proper remedy is to affirm the conviction and remand for resentencing. Ferrell controls here. Consequently, we withdraw our former opinion.

Because we remanded the case for the trial court to dismiss the indictment, we did not address defendant’s other assignment of error that there was not sufficient evidence to support his convictions for delivery and possession of a controlled substance. The trial court denied defendant’s motion for judgment of acquittal on that ground. We agree with the trial court that there was sufficient evidence.

Reconsideration allowed; opinion withdrawn; convictions affirmed and remanded for resentencing.