STATE v. DANIEL, 216 Or. App. 326 (2007)

172 P.3d 282

STATE OF OREGON, Plaintiff-Respondent, v. DANIEL JOSEPH McSORLEY, Defendant-Appellant.

Nos. CR0511543; A130113.Oregon Court of Appeals.Submitted on record and briefs October 31, 2007.
Affirmed November 28, 2007.

Appeal from the Clackamas County Circuit Court, Douglas V. Van Dyk, Judge.

Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Bronson D. James, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Carolyn Alexander, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Conviction for second-degree trespass reversed; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted of attempted second-degree burglary, ORS 164.215, and second-degree trespass, ORS 164.245. On appeal, he argues that the trial court erred in denying his motion for judgment of acquittal on the attempted burglary charge. We reject that argument without discussion. Defendant also argues that the trial court erred in entering a conviction on the charge of second-degree trespass, because that count had earlier been dismissed. The state concedes that the trial court erred in entering a conviction for second-degree trespass. Because the record supports the parties’ contention that that count was dismissed during trial, we accept the state’s concession.

Conviction for second-degree trespass reversed; remanded for resentencing; otherwise affirmed.

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