State v. Jones

FILED: December 10, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Appellant,

v.

ANTHONY BURKE JONES,

Defendant-Respondent.

Lane County Circuit Court
200210573
A132275

Lauren S. Holland, Judge.

On respondent's petition for reconsideration filed October 27, 2008.  Opinion filed October 15, 2008.  223 Or App 70, 195 P3d 78.

Peter Gartlan, Chief Defender, and Marc D. Brown, Deputy Public Defender, Appellate Division, Office of Public Defense Services for petition.

Before Landau, Presiding Judge, and Ortega, Judge, and Carson, Senior Judge.

PER CURIAM

Reconsideration allowed; former opinion modified and adhered to as modified.

PER CURIAM

Defendant has moved for reconsideration of our decision in State v. Jones, 223 Or App 70, 195 P3d 78 (2008), on the ground that the opinion contains a factual error.  ORAP 6.25(1).  We grant reconsideration, modify our original opinion as set out below, and adhere to that opinion as modified.

Defendant was charged with felony driving while suspended.  In our original opinion, we concluded that defendant was not entitled to challenge collaterally the November 14, 2001, suspension order of the Department of Transportation, Driver and Motor Vehicle Services Division (DMV), that formed a basis for the charge.  We therefore reversed the trial court's order granting defendant's motion to suppress evidence of the DMV order and remanded the case to the trial court for further proceedings.  In the course of describing the procedural history of the case, we stated, "Defendant did not seek administrative review of the 2001 DMV suspension order."

In his petition for reconsideration, defendant contends that he in fact did seek administrative review of the 2001 DMV suspension order.  Defendant is correct.  As the record on appeal discloses, he sought such review, and DMV denied relief; defendant did not seek judicial review of the order. 

Defendant does not explain--and we do not understand--how the fact that he did seek administrative review, but did not seek judicial review, affects the proper analysis of the issues before us.  We nevertheless modify our opinion by deleting the challenged sentence and replacing it with the following:

"Defendant sought administrative review of the 2001 DMV suspension order.  DMV denied relief, and defendant did not seek judicial review of the order."

In all other respects, we adhere to our original opinion.

Reconsideration allowed; former opinion modified and adhered to as modified.