Brey v. Mills

FILED: August 5, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

BARRY DEWAYNE BREY,

Petitioner-Appellant,

v.

DON MILLS,
Superintendent,
Two Rivers Correctional Institution,

Defendant-Respondent.

Umatilla County Circuit Court
CV081751
A140858

Hugh C. Downer, Jr, Senior Judge.

Submitted on July 02, 2009.

James N. Varner filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Kathleen Cegla, Attorney-in-Charge, Collateral Remedies, filed the brief for respondent.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Rosenblum, Judge.

PER CURIAM

Reversed and remanded.

PER CURIAM

Petitioner appeals a general judgment dismissing his petition for post-conviction relief with prejudice.  The trial court did not hold a hearing before dismissing the petition on the ground that it was time-barred.  A discussion of the facts would not benefit the bench, the bar, or the public.  Respondent concedes that, under Ware v. Hall, 342 Or 444, 154 P3d 118 (2007), and Harding v. Hall, 210 Or App 753, 152 P3d 987 (2007), "petitioner is entitled either to a hearing on the issue of whether his untimely, successive petition should be allowed to go forward, or to a dismissal without prejudice."  (Emphasis in original.)  We accept the concession as well founded.

Reversed and remanded.