OWENS v. PEARCE, 111 Or. App. 377 (1992)

823 P.2d 1039

WILLIAM K. OWENS, Appellant, v. Fred PEARCE, Respondent.

90-C-12418; CA A68928Oregon Court of Appeals.Submitted on record and briefs January 16, 1992
Reversed and remanded for new trial February 12, 1992

Appeal from Circuit Court, Marion County.

Richard D. Barber, Judge.

Sally L. Avera, Public Defender, and Stephen J. Bedor, Deputy Public Defender, Salem, filed the brief for appellant.

Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Mary H. Williams, Assistant Attorney General, Salem, filed the brief for respondent.

Before Joseph, Chief Judge, and Rossman and De Muniz, Judges.

PER CURIAM

Reversed and remanded for new trial.

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Page 379

PER CURIAM

In this habeas corpus action, defendant concedes that the trial court erred in making, without a trial, findings of fact that conflict with the replication filed by plaintiff, in granting defendant’s motion to strike and in entering final judgment for defendant. The return and the replication show a factual dispute that is material to the existence of a constitutional violation. Plaintiff alleges facts that, if true, constitute a denial of his constitutional rights that requires immediate judicial scrutiny and for which there is no other available adequate remedy.

Reversed and remanded for a new trial.

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