FILED: December 27, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DAVID ARTHUR DAHLEN,

Appellant.

0310-35107, 0310-35125
A124402 (Control), A124403
(Cases Consolidated)

Appeal from Circuit Court, Multnomah County.

Michael J. McShane, Judge.

On respondent's petition for reconsideration filed November 15, 2006. Opinion filed November 1, 2006. 209 Or App 110, 146 P3d 359.

Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General, for petition.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Rosenblum, Judge.

PER CURIAM

Reconsideration allowed; former opinion modified; reversed and remanded for further proceedings.

PER CURIAM

In our former opinion in this case, State v. Dahlen, 209 Or App 110, 146 P3d 359 (2006), we concluded that the trial court erred by denying defendant's motion to suppress evidence of statements that he made to police during interrogation after he unequivocally requested to speak with counsel. We reversed and remanded the case for a new trial. The state petitions for reconsideration of our disposition and requests that the case be reversed and remanded for further proceedings rather than specifically for a new trial. The state notes that defendant entered a conditional guilty plea to certain lesser-included offenses in exchange for the dismissal of other charges. Because his plea was conditional, defendant may now withdraw the plea and proceed to trial, or he may decide not to withdraw it. See ORS 135.335(3) ("A defendant who finally prevails on appeal may withdraw the [conditional guilty] plea." (Emphasis added.)); see also State v. Tannehill, 341 Or 205, 210-12, 141 P3d 584 (2006) (construing ORS 135.335(3)). Accordingly, we grant the state's petition for reconsideration and modify the disposition of our earlier opinion so that the case is remanded for further proceedings rather than for a new trial.

Reconsideration allowed; former opinion modified; reversed and remanded for further proceedings.


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