
    Argued September 28,
    affirmed October 2, 1970
    STATE OF OREGON, Respondent, v. DONNIE RAY GARDNER, Appellant.
    
    475 P2d 92
    
      Gary D. Babcock, Public Defender, Salem,- argued the cause and filed the brief for appellant.
    
      Jacob B. Tanzer, Solicitor General, Salem, argued the cause for respondent. With him on the brief' was Lee Johnson, Attorney General, Salem.
    Before Schwab, Chief Judge, and Langtry and Brancheield, Judges.
   PER CURIAM.

This is an appeal from a plea of guilty. Having originally plead not guilty, defendant went to trial before a jury on a charge of burglary not in a dwelling. He was represented by counsel. After hearing the evidence against him he withdrew his plea of not guilty and entered a plea of guilty. He now argues that the court should not have permitted him to so do.

On appeal from a judgment entered on a plea of guilty:

“* * * [T]he appellate court shall only consider the question whether an excessive fine or excessive, cruel or unusual punishment not proportionate to the offense has been imposed * * ORS 138.050.

See State v. Brudos, 3 Or App 239, 471 P2d 861 Sup Ct review denied (1970).

Affirmed.  