State v. Johnson

PER CURIAM.

Defendant appeals his conviction for the traffic crime of driving under the influence of intoxicants. ORS 487.540. He contends, and the state concedes, that the trial court erred in admitting into evidence a prior DUII conviction which did not indicate that defendant validly waived the right to counsel at the time he pleaded guilty. State v. Grenvik, 291 Or 99, 628 P2d 1195 (1981).

The question remains as to what disposition we should make of this case, given the trial court’s error in relying on the earlier judgment to enhance defendant’s sentence to that applicable to a traffic crime. The case was tried to the court, so it cannot be contended that the erroneous admission of defendant’s prior conviction was made known to a jury and thereby prejudiced their deliberations on the principal charge. There is, therefore, no need for a new trial. The appropriate disposition is to remand the case for resentencing as a traffic infraction. See State v. Mattila, 52 Or App 743, 629 P2d 845 (1981).

Sentence vacated; case remanded for resentencing.