concurring.
Although I agree with the result and with much of what the majority and the other concurring opinion say, I write separately, because I believe that a substantial portion of their analysis is incorrect. In criminal cases, where the state concedes error, our review is not discretionary; our only inquiry should be whether the state’s concession is correct and furthers the ends of justice. If it does, we should accept it and adopt a result that is consistent with that concession.
I do not believe that the analysis developed in cases such as State v. Farmer, 317 Or 220, 856 P2d 623 (1993), Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991), and State v. Brown, 310 Or 347, 800 P2d 259 (1990), was ever intended to apply to cases in which the state concedes error. In State v. Brown, supra, the Supreme Court stated that
“the reasons for the rule [requiring preservation of error] in the trial court are to allow the adversary to present its position and to permit the court to understand and correct any error.” 310 Or at 356.
*418Ailes v. Portland Meadows, Inc., supra, noted that an appellate court’s decision to recognize unpreserved error
“undercuts the established manner in which an appellate court ordinarily considers an issue, i.e., through competing arguments of adversary parties with an opportunity to submit both written and oral arguments to the court.” 312 Or at 382.
Ailes also notes that, by expressly following the prescribed method of recognizing unpreserved error, courts achieve “much greater efficiency in the review process.” Those reasons requiring preservation of error all fall when faced with the state’s concession of error in a criminal case. The justification that an adversary must have an opportunity to present its “position” and “competing arguments” has no force or value when the adversary does not have a competing argument, but instead acknowledges that the ends of justice require recognition that the trial court erred. This is particularly true when the adversary is the state, for, as the other concurrence recognizes, the sovereign has an obligation to see that justice is done. 129 Or App at 421 n 2.
The concerns involving the adversarial process are only a part of the rationale requiring preservation of error; the notions of judicial economy and “efficiency in the review process” are also valid objectives. In many situations, those institutional concerns are sufficient to require that errors be preserved for review to occur, even if the adversary concedes the error. However, in the criminal law context, because of the penal interests and penalties at stake, we have always held justice to a higher standard. That standard includes all the constitutional protections afforded a criminal defendant, as well as the requirement of proof of guilt beyond a reasonable doubt. An institutional concern for “judicial efficiency” simply should not be held to outweigh the interests of persons charged with a crime facing the loss of liberty and other possible criminal sanctions. Accordingly, the rule requiring preservation of error is irrelevant when we are faced with an acknowledged miscarriage of justice.
This analysis is not inconsistent with our earlier decisions in State v. Cavota, 121 Or App 598, 856 P2d 322 (1993), and State v. Woods, 121 Or App 661, 856 P2d 321 (1993). In Cavota and Woods, we were unable to reach the *419state’s concession of error, because ORS 138.222(2)(d) {since amended by Or Laws 1993, ch 698, § 1) barred us from reviewing “a[ny] sentence resulting from an agreement * * *.” See State v. Adams, 315 Or 359, 847 P2d 397 (1993).1 Here, defendant’s sentence was not the result of an agreement and, accordingly, we are not barred from reaching the state’s concession, as we were in Cavota and Woods.2
Applying my analysis to this case, defendant assigns error to the imposition of 60 months of post-prison supervision. The state concedes that defendant is correct. Therefore, our only inquiry is whether that concession is correct. Under OAR 253-05-002(2)(c), the court had authority to impose only 36 months of post-prison supervision. The state’s concession is correct, and we are required to reverse and remand for entry of corrected judgment.
I concur.
But see Justice Van Hoomissen’s concurring opinion in State v. Adams, supra, where he notes that the majority had not addressed certain issues, including the limits of a criminal defendant’s ability to stipulate:
“Of course, the parties may not stipulate to certain things, such as to the jurisdiction of the court * * * or that a defendant could be sentenced to a term of imprisonment beyond the statutory maximum prescribed by law.” 315 Or at 369. (Emphasis supplied.)
As the majority recognizes, State v. Slawson, 123 Or App 573, 860 P2d 876 (1993), also does not control our decision. 129 Or App at 417 n 3.