Opinion
10-84-07913, 10-84-07914, 10-84-09595, 10-84-09596, 10-84-09597, 10-84-09676; CA A35637 (Control), A35638, A35639, A35640, A35641, A35642
Argued and submitted October 22, 1985.
Judgments vacated and remanded for entry of judgment of conviction for burglary in second degree; otherwise affirmed November 14, 1985.
Appeal from Circuit Court, Lane County, Bryan T. Hodges, Judge Pro Tempore (Trial). Edwin E. Allen, Judge (Judgments).
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
In cases 10-84-07913, 10-84-07914, 10-84-09595 and 10-84-09676 judgments vacated and remanded for entry of judgment of conviction for burglary in second degree in each case and for resentencing; otherwise affirmed.
Defendant was convicted of six counts of burglary in the first degree. He appeals the convictions on four of the counts which were based on his being armed with burglar's tools. He contends that his convictions in those cases must be modified to convictions of burglary in the second degree, because the tools in question were not established to be burglar's tools. ORS 164.235(2). The state concedes that defendant is correct. We agree. State v. Graves, 299 Or. 189, 700 P.2d 244 (1985); State v. Sells, 299 Or. 198, 702 P.2d 68 (1985).
In cases 10-84-07913, 10-84-07914, 10-84-09595 and 10-84-09676 the judgments are vacated and remanded for entry of judgment of conviction for burglary in the second degree in each case and for resentencing; otherwise affirmed.