Filed: October 25, 2001

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

FROYLAN CRUZ-AGUIRRE,

Petitioner on Review.

(CC 95CR3094FE; CA A97471; SC S46254)

On petition for review filed March 17, 1999.*

Andy Simrin, Deputy Public Defender, Salem, filed the petition for petitioner on review.

No appearance contra.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs and De Muniz, Justices.**

MEMORANDUM OPINION

The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Fugate, 332 Or 195, 26 P3d 802, (2001).

*Appeal from Douglas County Circuit Court, Joan G. Seitz, Judge. 158 Or App 15, 972 P2d 1206 (1999).

**Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. Balmer, J. did not participate in the decision of this case.


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