Newkirk v. State

PER CURIAM In this post-conviction relief case, petitioner appeals the trial court’s dismissal of his petition on the ground that his theory for relief — inadequate assistance of counsel — had been assigned as error and decided adversely to him on his direct appeal. See State v. Newkirk, 57 Or App 428, 646 P2d 1380, rev den 293 Or 394 (1984) (affirmed without opinion). The trial court erred in so concluding; this court normally does not decide such issues on direct appeal. See, e.g., State v. Bateman, 48 Or App 357, 365, 616 P2d 1206 (1980). Had we departed from our normal practice on petitioner’s direct appeal, we would have said so by opinion. It follows that petitioner’s petition for post-conviction relief must be reinstated. Reversed and remanded.