
    On petition for review filed April 18,
    
    petition for review allowed; decision of Court of Appeals vacated and case remanded to Court of Appeals for further consideration October 25, 2001
    STATE OF OREGON, Respondent on Review, v. JOHN H. PEPPARD, Petitioner on Review.
    
    (CC 951127; CA A93616; SC S48401)
    34 P3d 168
    David Groom, Oregon Public Defender, and Rebecca Duncan, 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.
    
    
      
       Appeal from Clatsop County Circuit Court, Paula Brownhill, Judge. 172 Or App 311,18 P3d 488 (2001).
    
    
      
       Kulongoski, J., resigned June 14, 2001, and did not participate in the consideration or decision of this case. Balmer, J., did not participate in the consideration or decision of this case.
    
   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).  