FILED: August 16, 2006
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Appeal from Circuit Court, Washington County.
Thomas Kohl, Judge.
Argued and submitted July 10, 2006.
Seann C. Colgan, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
No appearance for respondent.
Before Edmonds, Presiding Judge, and Wollheim, Judge, and Cramer, Judge pro tempore.
The state appeals from an order setting aside defendant's convictions for assaulting a public safety officer and resisting arrest, both of which arose from the same incident. The state argues that, under the governing statute, defendant's convictions are ineligible for such an order. ORS 137.225 allows a defendant to apply for an order setting aside certain types of convictions when certain conditions are met and provides, in part:
"(6) Notwithstanding subsection (5) of this section, the provisions of subsection (1) of this section do not apply to:
"* * * * *
"(b) A person convicted, within the 10-year period immediately preceding the filing of the motion pursuant to subsection (1) of this section, of any other offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the arrest or conviction that is sought to be set aside. Notwithstanding subsection (1) of this section, a conviction which has been set aside under this section shall be considered for the purpose of determining whether this paragraph is applicable[.]"
(Emphasis added.) ORS 137.225(6) expressly includes convictions that arise out of the same criminal episode. Therefore, the trial court erred when it ordered defendant's convictions set aside.