FILED: March 15, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Appellant,

v.

ROGER ALVEY,

Respondent.

C041095CR; A128190

Appeal from Circuit Court, Washington County.

Gayle A. Nachtigal, Judge.

Submitted on record and briefs February 3, 2006.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Robert M. Atkinson, Assistant Attorney General, filed the brief for appellant.

Roger D. Alvey filed the brief pro se.

Before Landau, Presiding Judge, and Schuman and Ortega, Judges.

PER CURIAM

Reversed and remanded.

PER CURIAM

Defendant was indicted on 10 counts of encouraging child sexual abuse in the second degree, a Class C felony. ORS 163.686. Defendant moved to dismiss on the ground that the statute under which he was charged contains the same substantive elements as ORS 163.687, a Class A misdemeanor. According to defendant, the two statutes thus impermissibly conferred on the district attorney discretion to charge the same conduct as either a felony or a misdemeanor, in violation of state and federal constitutional guarantees of equal treatment. The trial court agreed and dismissed the indictment. The state now appeals, arguing that, although the Oregon Supreme Court previously had concluded in State v. Pirkey, 203 Or 697, 281 P2d 698 (1955), that the state and federal constitutions prohibit such prosecutorial discretion, Pirkey has since been overruled.

The state is correct. City of Klamath Falls v. Winters, 289 Or 757, 781-82, 619 P2d 217 (1980); State v. Van Hoomissen, 125 Or App 682, 683, 866 P2d 521 (1994).

Reversed and remanded.