Opinion
10-84-06996 10-84-07682; CA A34677 A34678
Argued and submitted October 22, 1985.
Judgment vacated on conviction for burglary, remanded for entry of judgment November 14, 1985.
Appeal from Circuit Court, Lane County, Edwin E. Allen, Judge.
Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Richardson, Presiding Judge, and Warden and Newman, Judges.
PER CURIAM
Judgment vacated on conviction for burglary in the first degree and remanded for entry of judgment of conviction for burglary in the second degree and for resentencing.
Defendant was convicted for burglary in the first degree, theft in the first degree and possession of a controlled substance. He appeals only the conviction for burglary. The charge and conviction was for first degree burglary based on the use a burglary tool: a power drill. ORS 164.225(1)(a). The state concedes that the power drill was not proven to be a burglary tool. State v. Graves, 299 Or. 189, 700 P.2d 244 (1985); State v. Sells, 299 Or. 198, 702 P.2d 68 (1985). We agree.
Because the court found that defendant committed a burglary, we vacate the judgment on the burglary in the first degree and remand for entry of a judgment of conviction for burglary in the second degree and for resentencing.