¶1Defendant was convicted for burglary in the first degree, theft in the first degree and possession of a controlled substance. He appeals only the conviction for burglary. The charge and conviction was for first degree burglary based on the use a burglary tool: a power drill. ORS 164.225(1)(a). The state concedes that the power drill was not proven to be a burglary tool. State v. Graves, 299 Or 189, 700 P2d 244 (1985); State v. Sells, 299 Or 198, 702 P2d 68 (1985). We agree.
¶2Because the court found that defendant committed a burglary, we vacate the judgment on the burglary in the first degree and remand for entry of a judgment of conviction for burglary in the second degree and for resentencing.