State v. Allen

Court of Appeals of Oregon

State v. Allen

548 P.2d 169, 25 Or. App. 57, 1976 Ore. App. LEXIS 1925

CourtCourt of Appeals of Oregon

DecidedApril 5, 1976

Docket17-309, CA-5176

StatusPublished

Cited by7 cases

This text of 548 P.2d 169 (State v. Allen) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Allen, 548 P.2d 169, 25 Or. App. 57, 1976 Ore. App. LEXIS 1925 (Or. Ct. App. 1976).

Pincite

Opinion

*59 SCHWAB, C. J.

At the conclusion of a single trial, defendant was separately convicted and sentenced for possession of two different illegal drugs (hashish and LSD) at the same time and place. As we have repeatedly held, defendant’s conduct constitutes only one, not two crimes. State v. Gill, 24 Or App 863, 547 P2d 166 (March 22, 1976); State v. Estlick, 24 Or App 117, 544 P2d 596 (1976); State v. Homer, 22 Or App 328, 538 P2d 945, Sup Ct review denied (1975); State v. Morales, 21 Or App 827, 537 P2d 109, former opinion adhered to, 22 Or App 470, 539 P2d 1112, Sup Ct review denied (1975); State v. Boyd, 15 Or App 650, 517 P2d 321 (1973), Sup Ct review denied (1974); State v. Miller, 14 Or App 396, 513 P2d 508 (1973).

The state notes that the question is one of legislative intent — whether the Legislative Assembly in enacting ORS 167.207 intended that a defendant with hashish in one pocket and LSD in the other be guilty of and punished for two counts of criminal activity in drugs. But then the state cites nothing at all germane to its theory about legislative intent. We adhere to our prior interpretation of ORS 167.207.

We have considered the issue raised by defendant on appeal even though it was not raised in the trial court. In a closely related context, State v. Webber, 14 Or App 352, 513 P2d 496 (1973), holds an objection must be made in the trial court to preserve the issue for appeal. The doctrine we here apply is now sufficiently well established that it is appropriate to extend Webber and decline to consider this issue in future cases where there was no objection in the trial court.

Reversed and remanded.

Free access — add to your briefcase to read the full text and ask questions with AI

*59 SCHWAB, C. J.

At the conclusion of a single trial, defendant was separately convicted and sentenced for possession of two different illegal drugs (hashish and LSD) at the same time and place. As we have repeatedly held, defendant’s conduct constitutes only one, not two crimes. State v. Gill, 24 Or App 863, 547 P2d 166 (March 22, 1976); State v. Estlick, 24 Or App 117, 544 P2d 596 (1976); State v. Homer, 22 Or App 328, 538 P2d 945, Sup Ct review denied (1975); State v. Morales, 21 Or App 827, 537 P2d 109, former opinion adhered to, 22 Or App 470, 539 P2d 1112, Sup Ct review denied (1975); State v. Boyd, 15 Or App 650, 517 P2d 321 (1973), Sup Ct review denied (1974); State v. Miller, 14 Or App 396, 513 P2d 508 (1973).

The state notes that the question is one of legislative intent — whether the Legislative Assembly in enacting ORS 167.207 intended that a defendant with hashish in one pocket and LSD in the other be guilty of and punished for two counts of criminal activity in drugs. But then the state cites nothing at all germane to its theory about legislative intent. We adhere to our prior interpretation of ORS 167.207.

We have considered the issue raised by defendant on appeal even though it was not raised in the trial court. In a closely related context, State v. Webber, 14 Or App 352, 513 P2d 496 (1973), holds an objection must be made in the trial court to preserve the issue for appeal. The doctrine we here apply is now sufficiently well established that it is appropriate to extend Webber and decline to consider this issue in future cases where there was no objection in the trial court.

Reversed and remanded.

Cite This Page — Counsel Stack

Bluebook (online)

548 P.2d 169, 25 Or. App. 57, 1976 Ore. App. LEXIS 1925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-allen-orctapp-1976.

Opinion

Related

Cite This Page — Counsel Stack