In Banc
Landau, J., not participating.
WARREN, J.
Reconsideration allowed; opinions modified and adhered to as modified.
Edmonds, J., dissenting.
WARREN, J.
In a consolidated petition for review, the state seeks review of our decisions in State v. Conger, 120 Or. App. 220, 851 P.2d 636 (1993) and State v. Daugherty, 116 Or. App. 665, 841 P.2d 704 (1992). We treat the petition as one for reconsideration, ORAP 9.15, allow it and modify our opinions.
Both defendants were tried and convicted of delivery of a controlled substance. Before trial, each defendant moved to quash the indictment on the basis that the grand jury that had returned the indictment was not comprised of seven members, as required by Oregon Constitution, Article VII (amended), section 5(2). Although seven grand jurors had been selected, one of the seven had been excused by the trial court, pursuant to ORS 132.110, when the indictments in these cases were issued. Based on our decision in Goodwin v. State of Oregon, 116 Or. App. 279, 840 P.2d 1372 (1992), in which we held that an indictment returned by fewer than seven grand jurors violates Article VII (amended), section 5(2), we reversed defendants' convictions.
The state seeks reconsideration, arguing that Goodwin was wrongly decided. Today, we withdrew our opinion in Goodwin, because we concluded that the defect in the indictment did not make the conviction void and, therefore, did not provide a basis for post-conviction relief. 125 Or. App. 359, 866 P.2d 466 (1993). We did not reconsider whether the constitutional issue in Goodwin was wrongly decided.
We decline to reconsider the merits of the constitutional argument and expressly adopt and incorporate in this opinion our analysis of that issue that was included in the original Goodwin decision. 116 Or App at 281-84. Because the indictments in these cases were issued in violation of Article VII (amended), section 5(2), and defendants preserved the error for appeal, we adhere to our reversal of the convictions in these cases.
Reconsideration allowed; opinions modified and adhered to as modified.
EDMONDS, J., dissenting.
For the reason expressed in my dissent in Goodwin v, State of Oregon, 116 Or. App. 279, 284, 840 P.2d 1372 (1992), I dissent.
Richardson, C.J., and Rossman and Riggs, JJ., join in this dissenting opinion.