State v. Hasselback

670 P.2d 632, 65 Or. App. 223, 1983 Ore. App. LEXIS 3859

• Court: Court of Appeals of Oregon
• Decided: October 19, 1983
• Docket: 10-80-10695; CA A26800
• Status: Published

Opinion

PER CURIAM

In this criminal case, appellant seeks reversal on evidentiary grounds of his two convictions for possession of a controlled substance. In the alternative, he seeks a remand for resentencing on the ground that his two convictions should have been merged. We find no error with respect to appellant’s evidentiary claims.

The merger question arises out of the trial court’s entry of convictions for both the offense of illegal possession of a controlled substance (more than one ounce of marijuana or the concentrated resinous extract of marijuana (hashish)) and the lesser-included offense of illegal possession of a controlled substance (less than one ounce of marijuana) under the same count in the indictment. The state confesses error. It urges, however, that, inasmuch as the trial court expressly held that, “for the purpose of imposing sentence,” the two offenses would be merged, no purpose would be served by a remand.

In these rare circumstances, we agree. Pursuant to our authority under Or Const, Art VII, §3, we modify the judgment in this case by deleting the judgment for the lesser-included offense of illegal possession of a controlled substance (less than one ounce of marijuana). The conviction for illegal possession of a controlled substance (hashish) is affirmed, as is appellant’s sentence.