
    On petition for review filed March 17, 1999,
    
    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. FROYLAN CRUZ-AGUIRRE, Petitioner on Review.
    
    (CC 95CR3094FE; CA A97471; SC S46254)
    34 P3d 166
    Andy Simrin, 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 Douglas County Circuit Court, Joan G. Seitz, Judge. 158 Or App 15, 972 P2d 1206 (1999).
    
    
      
       Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June Í4, 2001, and did not participate in the 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).  