Opinion
23-272; CA A35082
Argued and submitted December 30, 1985.
Reversed and remanded for new trial May 29, 1986.
Appeal from Circuit Court, Tillamook County, Bert Gustafson, Judge Pro Tempore.
Timothy M. Dolan, Garibaldi, argued the cause for appellant. With him on the brief was Thomas E. Sweeney, Garibaldi.
Terry Ann Leggert, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM
Reversed and remanded for new trial.
Defendant appeals his conviction for borrowing a game tag, ORS 497.400(2), contending that the trial court erred in denying a motion for continuance, which would have allowed the parties to secure the presence of a witness for trial. The state concedes that the trial court erred in denying defendant's request for continuance in which the state joined. Because defendant met the requirements for obtaining a continuance for the purpose of securing a witness for trial, see State v. Otten, 234 Or. 219, 223, 380 P.2d 812 (1963); State v. Birchard, 23 Or. App. 17, 21-22, 540 P.2d 1033 (1975), we agree that it was an abuse of discretion for the trial court to deny a continuance. State v. Wolfer, 241 Or. 15, 403 P.2d 715 (1965); State v. Schroeder, 62 Or. App. 331, 339, 661 P.2d 111, rev den 295 Or. 161 (1983).
Reversed and remanded for a new trial.