In the Matter of Jerry Rainbolt, Alleged to be a Mentally Ill Person.
STATE of Oregon, Respondent,
v.
Jerry RAINBOLT, Appellant.
M01-07-24; A115709.
Court of Appeals of Oregon.
Petition for Reconsideration August 22, 2002. Petition for Reconsideration September 27, 2002. Decided October 30, 2002.Leonard J. Kovac, Judge pro tempore.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Judy C. Lucas, Assistant Attorney General, for petition.
Gay Canaday for response.
Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.
On Respondent's Petition for Reconsideration August 22, 2002.
Appellant's Response to Petition for Reconsideration September 27, 2002.
PER CURIAM.
The state petitions for reconsideration of our decision in State v. Rainbolt, 182 Or.App. 668, 50 P.3d 1228 (2002). We grant reconsideration, modify our opinion, and adhere to our original disposition.
In our decision, we reversed appellant's commitment to the Mental Health Division. We held that the state proved, by clear and convincing evidence, that appellant suffered from a mental disorder. Id. at 672, 50 P.3d 1228. In addition, we held that "the record lacks clear and convincing evidence that appellant is unwilling or unable to cooperate with and benefit from voluntary treatment * * *." Id. at 674, 50 P.3d 1228 (emphasis added). As the state now argues, the clear and convincing evidence standard does not apply when the court determines whether an individual is willing and able to cooperate and benefit from voluntary treatment.[1]See State v. Brenhuber, 146 Or.App. 719, 722, 934 P.2d 550 (1997) ("The trial court did not err in applying a preponderance of the evidence standard of proof in the dispositional phase of appellant's mental commitment proceeding."). Appellant agrees that the standard of proof for the dispositional phase is a preponderance of the evidence.
We now hold that the state did not prove by a preponderance of the evidence that appellant *903 is unwilling or unable to cooperate with and benefit from voluntary treatment with the help of his family.
Reconsideration allowed; former opinion modified adhered to as modified.
NOTES
[1] In its brief, the state stated that the standard of proof in the dispositional phase was clear and convincing evidence.