State v. Nguyen

FILED: October 2, 2002

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

VAN KIM NGUYEN,
aka Vo Kim Than,

Appellant.

000332712; A113186

Appeal from Circuit Court, Multnomah County.

Michael Marcus, Judge.

On appellant's and respondent's joint motion for reversal filed August 20, 2002.

David E. Groom, Acting Executive Director, Office of Public Defense Services, and Rankin Johnson IV, Deputy Public Defender, and Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Brendan C. Dunn, Assistant Attorney General, for motion.

Before Brewer, Presiding Judge, and Wollheim and Kistler, Judges.

PER CURIAM

Reversed.

PER CURIAM

Defendant and the state have jointly moved for a reversal of the judgment in this case convicting defendant of a single count of forgery in the first degree. We grant the motion.

At trial, the state moved to strike the reference in the felony indictment to a particular check that defendant was alleged to have forged, on the ground that defendant actually forged a different check. Despite defendant's objection, the court granted the motion. On appeal, defendant argues that the foregoing amendment was substantive and therefore violated his right, under Article VII (Amended), section 5, of the Oregon Constitution to be charged with a felony only by a grand jury indictment. The state concedes that the trial court erred. In light of the record developed in the trial court, on which we do not elaborate here, we accept the state's concession. See State v. Wimber, 315 Or 103, 113, 843 P2d 424 (1992).

Reversed.