Opinion
10-84-01538; CA A32578
On appellant's reconsideration filed June 19 of former opinion ( 73 Or. App. 575, 700 P.2d 315 (1985)), reconsideration granted; reversed and remanded with instructions September 18, 1985
Appeal from Circuit Court, Lane County, Gregory Foote, Judge.
William L. Tufts, Public Defender Services of Lane County, Eugene, for petition.
Before Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Petition for reconsideration granted; reversed and remanded with instructions.
Defendant was convicted of burglary in the first degree for breaking into a bowling alley while in possession of a prybar — a "burglar's tool." ORS 164.225(1)(a). On appeal to this court, he argued that the "burglar's tool" portion of ORS 164.225(1) was unconstitutional. We affirmed without opinion. State v. Ford, 73 Or. App. 575, 700 P.2d 315 (1985). Defendant now petitions for Supreme Court review of our decision, which petition we treat as one for reconsideration. Rule 10.10, ORAP. On reconsideration, defendant's conviction for burglary in the first degree is reversed, and the case is remanded to the trial court with instructions to enter a conviction for burglary in the second degree and impose an appropriate sentence therefor. See State v. Graves, 299 Or. 189, 700 P.2d 244 (1985).
Petition for reconsideration granted; reversed and remanded with instructions.