State v. Trujillo

142 P.3d 85, 207 Or. App. 344, 2006 Ore. App. LEXIS 1199

Opinion

PER CURIAM

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:

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“(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.

Reversed.