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State v. Bibiano
— 220 —
Submitted April 16; conviction on Count 1 reversed and remanded, remanded for resentencing, otherwise affirmed May 5; petition for review denied July 29, 2021 (368 Or 511)
STATE OF OREGON, Plaintiff-Respondent, v. ISMAEL NAVA BIBIANO, aka Ismael NavaBibiasno, Defendant-Appellant. Multnomah County Circuit Court 18CR75259; A172176 486 P3d 67
Melvin Oden-Orr, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge. PER CURIAM Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.
Cite as 311 Or App 220 (2021) 221
PER CURIAM Defendant appeals his convictions for driving under the influence of intoxicants (DUII), ORS 813.011 (Count 1), and misdemeanor driving while suspended, ORS 811.182 (Count 2). Although the misdemeanor was tried to the court, the DUII was tried before a jury, which returned a nonunanimous verdict. On appeal, defendant argues that the trial court erred in denying his motion to suppress evi- dence and in instructing the jury, over defendant’s objection, that it could return a nonunanimous verdict. We reject with- out discussion defendant’s assignment of error concerning the motion to suppress. With respect to the nonunanimous jury verdict for DUII, the parties agree that defendant is entitled to relief under Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). We agree and accept the state’s concession on that point. Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.