State v. Gallegos

Court of Appeals of Oregon

State v. Gallegos

145 P.3d 255, 208 Or. App. 488, 2006 Ore. App. LEXIS 1514

CourtCourt of Appeals of Oregon

DecidedOctober 4, 2006

Docket0400073CR; A129969

StatusPublished

Cited by1 cases

This text of 145 P.3d 255 (State v. Gallegos) 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. Gallegos, 145 P.3d 255, 208 Or. App. 488, 2006 Ore. App. LEXIS 1514 (Or. Ct. App. 2006).

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Opinion

PER CURIAM

Defendant was convicted on five counts of attempted aggravated murder, ORS 163.095. Three of those convictions relate to defendant’s attempt to hire Reeves to murder the intended victim; two of those convictions relate to defendant’s attempt to hire Castro to murder the intended victim. Defendant contends that the two convictions concerning his attempt to hire Reeves should be merged with one another, and that the three convictions concerning his attempt to hire Castro all should merge together, thus resulting in two rather than five convictions. The state concedes that, under State v. Barrett, 331 Or 27,10 P3d 901 (2000), such merger is appropriate.

Defendant suggests that the proper remedy is for this court to remand for merger of the convictions and for resentencing. The state suggests that resentencing is not required because it is clear that the court has authority to, and will, impose the same sentence regardless of the number of convictions. We disagree that resentencing is not required. See ORS 138.222(5); State v. Rodvelt, 187 Or App 128, 66 P3d 577, rev den, 336 Or 17 (2003) (failure to merge convictions is error that requires remand of the entire case for resentencing).

Reversed and remanded for entry of judgment merging two convictions for Counts one and five, and merging three convictions for Counts two through four, and for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted on five counts of attempted aggravated murder, ORS 163.095. Three of those convictions relate to defendant’s attempt to hire Reeves to murder the intended victim; two of those convictions relate to defendant’s attempt to hire Castro to murder the intended victim. Defendant contends that the two convictions concerning his attempt to hire Reeves should be merged with one another, and that the three convictions concerning his attempt to hire Castro all should merge together, thus resulting in two rather than five convictions. The state concedes that, under State v. Barrett, 331 Or 27,10 P3d 901 (2000), such merger is appropriate.

Defendant suggests that the proper remedy is for this court to remand for merger of the convictions and for resentencing. The state suggests that resentencing is not required because it is clear that the court has authority to, and will, impose the same sentence regardless of the number of convictions. We disagree that resentencing is not required. See ORS 138.222(5); State v. Rodvelt, 187 Or App 128, 66 P3d 577, rev den, 336 Or 17 (2003) (failure to merge convictions is error that requires remand of the entire case for resentencing).

Reversed and remanded for entry of judgment merging two convictions for Counts one and five, and merging three convictions for Counts two through four, and for resentencing; otherwise affirmed.

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Bluebook (online)

145 P.3d 255, 208 Or. App. 488, 2006 Ore. App. LEXIS 1514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gallegos-orctapp-2006.

Opinion

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