FILED: November 25, 1998

STATE OF OREGON,

Respondent,

v.

DONALD RAY JONES,

Appellant.

Appeal from Circuit Court, Klamath County.

Richard D. Rambo, Judge.

On respondent's petition for reconsideration and motion to withdraw opinion and dismiss appeal filed October 13, 1998, and appellant's response filed October 22, 1998. Opinion filed September 30, 1998. 156 Or App 331, ___ P2d ___.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Ann Kelley, Assistant Attorney General, for petition.

Anne Morrison, Deputy Public Defender, contra.

Before De Muniz, Presiding Judge, and Haselton and Wollheim, Judges.

PER CURIAM

Reconsideration allowed; previous opinion withdrawn; appeals dismissed.

PER CURIAM

Respondent petitions for reconsideration and moves that we withdraw our opinion, State v. Jones, 156 Or App 331, ___ P2d ___ (1998), and dismiss the appeals pursuant to ORAP 8.05(3),(1) because appellant absconded during the pendency of the appeals and has not surrendered. We allow the petition.

Reconsideration allowed; previous opinion withdrawn; appeals dismissed.

1. ORAP 8.05(3) provides:

"If a defendant in a criminal case, a petitioner in a post-conviction relief proceeding, a plaintiff in a habeas corpus proceeding, a petitioner in a parole review proceeding, or a petitioner in a prison disciplinary case, on appeal of an adverse decision, escapes or absconds from custody or supervision, the respondent on appeal may move for dismissal of the appeal. If the appellant has not surrendered at the time the motion is decided by the court, the court shall allow the motion and dismiss the appeal or judicial review."

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