Filed: June 21, 2001

STATE OF OREGON,

Respondent on Review,

v.

ANTHONY CHRISTOPHER ALLEN,

Petitioner on Review.

On review from the Court of Appeals.*

Argued and submitted October 14, 1999.

Dan Maloney, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was David E. Groom, State Public Defender.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.**

GILLETTE, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Multnomah County Circuit Court, Joseph Ceniceros, Judge. 157 Or App 397, 972 P2d 1230 (1998).

**Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case; Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz, J., did not participate in the consideration or decision of this case.

GILLETTE, J.

This is a criminal case in which a jury convicted defendant of the crimes of burglary in the first degree, ORS 164.225, and aggravated theft in the first degree, ORS 164.057. At the beginning of voir dire, the trial judge excused a prospective juror because the prospective juror acknowledged that he was ineligible to serve by virtue of a provision of a then-recently-passed constitutional initiative, Ballot Measure 40 (1996). After defendant's conviction, this court declared that initiative unconstitutional. See Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998) (so holding). By that time, however, the legislature had passed an act -- Senate Bill (SB) 936 -- that contained versions, some of them modified, of many of the same provisions as Measure 40. SB 936 included a section excluding prospective jurors like the prospective juror in the present case from serving in criminal trials. On defendant's appeal to the Court of Appeals, defendant's sole assignment of error was that the trial court erred in excluding the juror. The state responded that defendant's conviction should be affirmed, because the trial judge's decision to exclude the juror was valid under SB 936. The Court of Appeals affirmed defendant's conviction without opinion. State v. Allen, 157 Or App 397, 972 P2d 1230 (1998). We allowed defendant's petition for review and, for the reasons that follow, now affirm the decision of the Court of Appeals.

Defendant committed the offenses in question on April 22, 1996. Thereafter, and before defendant was brought to trial, the people at an election on November 5, 1996, approved Measure 40, which became effective on December 5, 1996. (1) Section 1(g) of that measure provided that no person could serve as a juror in a criminal case who was not a registered voter or who had been convicted of a felony or served a felony sentence within the preceding 15 years. At defendant's trial, which occurred on December 19-23, 1996, a prospective juror was excused from consideration for service after he acknowledged that he was ineligible to serve under section 1(g). (2) The jury that was empaneled convicted defendant of both charges against him.

After defendant's trial, the 1997 Legislature passed SB 936 (Or Laws 1997, ch 313), which provided, inter alia:

"(3)(a) Any person is eligible to act as a juror in a criminal trial, beginning on or after December 5, 1996, unless the person:

"* * * * *

"(E) Has been convicted of a felony or served a felony sentence within the prior 15 years; or

"(F) Is not registered to vote."

Or Laws 1997, ch 313,