
    Submitted on record and briefs May 31,
    conviction vacated and remanded for reconsideration of petition for diversion August 3, 1988
    STATE OF OREGON, Respondent, v. BILLY BARNES, Appellant.
    
    (87-10797; CA A45915)
    758 P2d 419
    Wayne Mackeson, Des Connall and Dan Lorenz, Portland, filed the brief for appellant.
    Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, filed the brief for respondent.
    Before Warden, Presiding Judge, and Van Hoomissen and Graber, Judges.
    PER CURIAM
   PER CURIAM

Defendant appeals his conviction for driving under the influence of intoxicants (DUII). Before his conviction, he had petitioned for a diversion agreement. He had three prior DUII convictions which, because they were uncounseled, could not serve to bar a diversion agreement in this case. See City of Pendleton v. Standerfer, 297 Or 725, 732, 688 P2d 68 (1984). The trial court, however, denied diversion on the basis that, within the past 10 years, defendant had participated in a court-ordered alcohol program as a result of one of the prior convictions. That was error, because nothing originating from an uncounseled DUII conviction can be the basis for denying diversion. We therefore vacate defendant’s conviction and remand to the trial court for reconsideration of defendant’s petition for diversion.

Conviction vacated; remanded for reconsideration of petition for diversion. 
      
       At the relevant time, former ORS 813.210(4) (b) provided, in pertinent part:
      “(4) * * * [T]he court may allow a petition for a driving while under the influence of intoxicants diversion agreement unless the court determines, by a preponderance of the evidence, that one or more of the following applies:
      «****:|t
      “(b) The defendant is participating, on the date of commission of the present offense, or within 10 years before the date of commission of the present offense, has participated in a driving while under the influence of intoxicants diversion program or in any similar alcohol or drug rehabilitation program in this state or in any other jurisdiction.”
     