State v. Gilmour

944 P.2d 321 (1997) 149 Or. App. 414

STATE of Oregon, Respondent,
v.
Johnny Lee GILMOUR, Appellant.

CM95-21824; CA A95759.

Court of Appeals of Oregon.

Submitted on Record and Briefs May 8, 1997. Decided August 6, 1997.

Chris W. Dunfield, Corvallis, filed the brief for appellant.

Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and Richard D. Wasserman, Assistant Attorney General, filed the brief for respondent.

Before DEITS, C.J, and De MUNIZ and HASELTON, JJ.

DEITS, Chief Judge.

Defendant appeals his convictions for resisting arrest, ORS 162.315, and providing liquor to a person under 21, ORS 471.408. Although he was charged with a number of crimes, the jury acquitted him of all of the charges except the two above-mentioned convictions. Those convictions were entered as misdemeanors rather than violations.

Defendant argues that the trial court erred in entering the convictions as misdemeanors because the state did not indicate on the record that it intended to proceed with those two charges as misdemeanors, as required by ORS 161.565(2). The state concedes that it failed to indicate on the record that the state was proceeding with the charges as misdemeanors, and it concedes that that was error. We agree that the trial court erred in entering the convictions as misdemeanors, State v. Bonnin, 144 Or.App. 263, 926 P.2d 830 (1996), and that the error is apparent on the face of the record. Accordingly, we exercise our discretion to review the error. State v. Jones, 129 Or.App. 413, 415-16, 879 P.2d 881 (1994).

We note that the circumstances here are distinguishable from those in State v. Lovette, 145 Or.App. 317, 930 P.2d 856 (1996), rev. den. 325 Or. 45, 934 P.2d 1125 (1997). In Lovette, we refused to exercise our discretion to review as apparent on the face of the record the defendant's claim that the state did not declare its intention to proceed on the charges as misdemeanors, as required by ORS 161.565(2). However, as we explained in Lovette, it was not clear from the record in that case that the state had failed to satisfy the statute. There is no dispute here that the statutory requirements were not met.

Judgment vacated; remanded to the trial court with instructions to enter the convictions for resisting arrest and providing liquor to a person under 21 as violations, and for resentencing; otherwise affirmed.