Opinion
No. 82102424; CA A27236; SC S30012
Argued and submitted December 5, 1983
Affirmed June 5, 1984
In Banc
Appeal from orders of the Circuit Court for Linn County, William O. Lewis and James C. Goode, Judges.
Relan Colley, Corvallis, argued the cause for petitioner on review. With him on the briefs was Colley Colley.
Kay Kiner James, Assistant Solicitor General, argued the cause for respondent on review. With her on the briefs were Dave Frohnmayer, Attorney General, James E. Mountain, Solicitor General, and Sally Leisure, Assistant Attorney General.
The issue is similar to that presented in State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984).
Defendant appealed from a judgment on conviction on his plea of guilty. He assigned as error the trial court's denial of his motion to withdraw his guilty plea and to plead not guilty and go to trial.
On appeal the state argued that the claim of error could not be reached in an appeal under ORS 138.050, relying primarily on this court's decision in State v. Jairl, 229 Or. 533, 368 P.2d 323 (1962). Defendant responded that this court in State v. Cornelius, 249 Or. 454, 438 P.2d 1020 (1968), and State v. Burnett, 228 Or. 556, 365 P.2d 1060 (1961), had held, contrary to Jairl, that the denial of a motion to change plea from guilty to not guilty could be reached on direct appeal.
The Court of Appeals held on the authority of its decision in State v. Clevenger, 64 Or. App. 183, 667 P.2d 9 (1983), that it had no authority to consider this assignment of error on direct appeal. State v. Elwood, 64 Or. App. 422, 668 P.2d 474 (1983).
We allowed the defendant's petition for review for the same reasons we allowed the petition for review in State v. Clevenger, supra. For the reasons set forth in our opinion in that case, we affirm the judgment of the Court of Appeals in this case.
Affirmed.