State v. Coven

839 P.2d 261, 115 Or. App. 538, 1992 Ore. App. LEXIS 1861

Opinions

RIGGS, J.

The state seeks reconsideration of our decision ordering the trial court to dismiss the indictment. State v. Coven, 112 Or App 657, 828 P2d 1063 (1992). We allow reconsideration and modify our opinion.

A three-count indictment charged defendant with one count of unlawful delivery of a controlled substance, ORS 475.992(1), one count of unlawful possession of a controlled substance, ORS 475.992(4), and one count of endangering the welfare of a minor. ORS 163.575. Each drug count included an allegation that defendant committed the crime “as part of a drug cultivation, manufacture or delivery scheme or network.” OAR 253-04-002(3). Defendant demurred to the indictment, arguingthat the “scheme or network” allegation was unconstitutionally vague. After the court overruled his demurrer, it found defendant guilty of all of the charges after a trial on stipulated facts. Defendant appealed, and we reversed. Because the scheme or network allegation is unconstitutionally vague, we concluded that the court erred in overruling defendant’s demurrer. State v. Moeller, 105 Or App 434, 439, 806 P2d 130, rev dismissed 312 Or 76, 815 P2d 701 (1991). We remanded with instructions to dismiss the indictment.

The state argues that we should not have required dismissal of the indictment. First, it contends that, because only the controlled substance charges were affected by invalidating the “scheme or network” allegation of the indictment, the indictment still validly charged defendant with endangering the welfare of a minor. Therefore, the state argues, we should not have reversed defendant’s conviction on that count. We agree. State v. Dunn, 99 Or App 519, 523, 783 P2d 29 (1989), rev den 309 Or 522 (1990).

The state argues that, when only part of a charging instrument is invalidated, the charge remains valid if the remaining allegations still charge an offense. Because the indictment still charges controlled substance offenses, even disregarding the “scheme or network” allegation, the state contends, the court did not err in overruling defendant’s demurrer and we should have affirmed defendant’s convictions and remanded this case for resentencing. We recently decided that issue contrary to the state’s position. State v. Costello, 115 Or App 202, 837 P2d 552 (1992).

Reconsideration allowed; opinion modified by affirming conviction for endangering welfare of minor; remanded for resentencing on that change; opinion adhered to as modified.