FILED: July 3, 2002

STATE OF OREGON,

Respondent,

v.

JACK VERL HURD,

Appellant.

Appeal from Circuit Court, Lane County.

Gregory G. Foote, Judge.

Argued and submitted May 29, 2002.

David E. Groom, Acting Executive Director, Public Defense Services, and Robin A. Jones, Senior Deputy Public Defender, filed the brief for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Deits, Chief Judge, and Brewer, Judge.

BREWER, J.

Affirmed.

BREWER, J.

Defendant appeals from his sentence on a conviction for felony driving under the influence of intoxicants (DUII). ORS 813.010. He asserts that the sentence violates the ex post facto prohibitions of the United States Constitution and the Oregon Constitution, (1) because, in calculating his criminal history score, the trial court applied a sentencing guideline rule, OAR 213-004-0009 (1999), that reclassified the crime seriousness levels of his prior DUII convictions. (2) We affirm.

Defendant committed the offense underlying his current conviction on January 23, 2000. He was prosecuted and convicted under ORS 813.010(5), which classifies as a felony any DUII committed by a person having more than three prior DUII convictions within the previous 10 years. ORS 813.010(5) took effect on December 31, 1999. Or Laws 1999, ch 1049,