Opinion
82-4649-J-1; CA A31136
Submitted on record and briefs April 3, 1985
Reversed and remanded May 15, 1985
Appeal from Circuit Court, Jackson County.
L. A. Merryman, Judge.
John D. Newkirk, Medford, filed the brief pro se for appellant.
Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, filed the brief for respondent.
Before Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Reversed and remanded.
In this post-conviction relief case, petitioner appeals the trial court's dismissal of his petition on the ground that his theory for relief — inadequate assistance of counsel — had been assigned as error and decided adversely to him on his direct appeal. See State v. Newkirk, 57 Or. App. 428, 646 P.2d 1380, rev den 293 Or. 394 (1984) (affirmed without opinion). The trial court erred in so concluding; this court normally does not decide such issues on direct appeal. See, e.g., State v. Bateman, 48 Or. App. 357, 365, 616 P.2d 1206 (1980). Had we departed from our normal practice on petitioner's direct appeal, we would have said so by opinion. It follows that petitioner's petition for post-conviction relief must be reinstated.
Reversed and remanded.