Holmes v. Hall

FILED: March 13, 2002

IN THE COURT OF APPEALS OF THE STATE OF OREGON

ALAN REED HOLMES,

Appellant,

v.

GUY HALL,
Superintendent,
Mill Creek Correctional Facility,

Respondent.

99C-12571; A113956

Appeal from Circuit Court, Marion County.

C. Gregory West.

Submitted on record and briefs February 1, 2002.

John E. Storkel, Storkel & Grefenson P.C. filed the brief for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Robert B. Rocklin, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Linder and Wollheim, Judges.

PER CURIAM

Reversed and remanded.

PER CURIAM

Petitioner in this post-conviction proceeding appeals the trial court's dismissal of his petition with prejudice on the ground that petitioner named the wrong defendant and filed the petition in the wrong court. Defendant concedes that the trial court erred in both respects. We conclude that defendant's concession is well-founded. Consequently, we reverse and remand.

Petitioner's petition concerns his conviction for a misdemeanor in Clatsop County. At the time he filed his petition, he was incarcerated in Marion County on a different conviction. He filed his petition in Marion County, naming as defendant the superintendent of the institution in which he was incarcerated. Defendant moved to dismiss on the ground that petitioner had filed his petition in the wrong county and against the wrong defendant. The trial court agreed and dismissed the petition with prejudice. On appeal, defendant concedes that, under Phelps v. State of Oregon, 136 Or App 363, 901 P2d 965 (1995), he is the proper defendant and Marion County is the proper venue. Defendant further acknowledges that, even if the petition had been filed in the wrong venue or named the wrong defendant, the proper remedy would have been to change the venue or to amend the petition to name the proper defendant. Id. at 368-69. We agree.

Reversed and remanded.