FILED: November 1, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

MICHAEL JOSEPH BAILEY,

Appellant.

03C-42661; A122767

Appeal from Circuit Court, Marion County.

John B. Wilson, Judge.

On respondent's petition for reconsideration filed September 13, 2006. Opinion filed August 30, 2006. 207 Or App 522, 142 P3d 512.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Benjamin R. Hartman, Assistant Attorney General, for petition.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Rosenblum, Judge.

PER CURIAM

Reconsideration allowed; prior opinion and disposition withdrawn; affirmed.

PER CURIAM

The state petitions for reconsideration of our decision in State v. Bailey, 207 Or App 522, 142 P3d 512 (2006), noting that we made a factual error that led us to an incorrect disposition of the case. We agree, and therefore allow reconsideration, withdraw our prior opinion and disposition, and affirm defendant's convictions and sentences.

In our prior opinion, we stated that defendant had been convicted after jury trial on two counts of delivery of a controlled substance to a minor. Id. at 523. The state points out that defendant, in fact, waived jury trial and was tried to the court. The state argues that, because defendant waived jury trial, his unpreserved challenge to his departure sentences much be affirmed in light of State v. Perez, 340 Or 310, 131 P3d 168 (2006), and State v. Gornick, 340 Or 160, 130 P3d 780 (2006). On reconsideration, we agree that Perez and Gornick are controlling. Accordingly, we withdraw our previous disposition of the case.

Reconsideration allowed; prior opinion and disposition withdrawn; affirmed.