Summary
In State v. Lassiter, 244 Or App 327, 328, 267 P3d 854 (2011), the two crimes that should have merged were both misdemeanors, making ORS 138.222(5)(b) inapplicable ("[i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts.").
Summary of this case from State v. SkaggsOpinion
Nos. 091052496; A145173.
Submitted on June 3, 2011.
July 13, 2011.
Appeal from the Multnomah County Circuit Court, Richard C. Baldwin, Judge.
Peter Gartlan, Chief Defender, and Alice Newlin-Cushing, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.
Before Haselton, Presiding Judge, and Armstrong, Judge, and Duncan, Judge.
PER CURIAM
Reversed and remanded with instructions to enter a judgment of conviction for one count of second-degree theft reflecting that defendant was found guilty on both theories.
Defendant appeals a judgment of conviction for attempted first-degree theft, ORS 164.055, for attempting to return to the victim, a department store, unpurchased items for a refund and second-degree theft, ORS 164.045, for taking the property from the victim's store. A recitation of the facts would not benefit the bench, the bar, or the public. On appeal, defendant contends that the trial court erred in failing to merge those convictions. In response, relying on State v. Cox, 336 Or 284, 82 P.3d 619 (2003), the state concedes that the trial court erred in that regard. We agree with the state and accept its concession.
Both ORS 164.055 and ORS 164.045 require that a defendant commit theft as defined in ORS 164.015 by means other than extortion. ORS 164.015 provides, in part:
"A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person:
"(1) Takes, appropriates, obtains or withholds such property from an owner thereof;
"* * * * *
"(5) Commits theft by receiving as provided in ORS 164.095."
In turn, ORS 164.095(1) provides that "[a] person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft."
Reversed and remanded with instructions to enter a judgment of conviction for one count of second-degree theft reflecting that defendant was found guilty on both theories.