PER CURIAM.
Reversed and remanded.
SCHUMAN, J., dissenting.
PER CURIAM.
Defendant was charged by indictment with three counts of public indecency, ORS 163.465. Each count alleged all of the elements of public indecency, ordinarily a misdemeanor. Each count also alleged an additional element that enhanced public indecency to a felony. That element was defendant's prior convictions for public indecency. ORS 163.465(2)(b). Defendant offered to stipulate to his prior convictions with the understanding that the trial court would exclude all evidence of them. The state filed a motion in limine requesting that defendant's proposed stipulation be read into the record in the presence of the jury. The trial court entered an order denying the state's request and accepting defendant's stipulation. It also ruled that all evidence of the prior convictions would be excluded. The state appeals the trial court's denial of its motion in limine. ORS 138.060(1)(c). We reverse.
ORS 163.465 provides, in part:
"(2)(a) Public indecency is a Class A misdemeanor.
"(b) Notwithstanding paragraph (a) of this subsection, public indecency is a Class C felony if the person has a prior conviction for public indecency * * *."
This case presents the same issue presented in State v. Hambrick , 189 Or. App. 310, ___ P.3d ___ (August 20, 2003), where, relying on State v. Garrett, 187 Or. App. 201, 204-05, 66 P.3d 554 (2003), we held that the trial court erred in accepting the defendant's stipulation to the "prior conviction" element of a crime and in then excluding all evidence of that prior conviction. For the reasons set out in Hambrick and Garrett, we reverse and remand.
Reversed and remanded.