State v. Tate

295 P.3d 683, 254 Or. App. 509

• Court: Court of Appeals of Oregon
• Decided: January 9, 2012
• Docket: CR0700655; A144935
• Status: Published

Opinion

PER CURIAM

A jury convicted defendant of aggravated felony murder, ORS 163.095(2)(d); murder, ORS 163.115, and first-degree burglary, ORS 164.225. The trial court later granted defendant’s motion in arrest of judgment with respect to the aggravated murder conviction, vacated that conviction, and entered an amended judgment dismissing that charge. The state appeals, asserting that, in light of State v. Dasa, 234 Or App 219, 227 P3d 228, rev den, 349 Or 173 (2010), the trial court erred in granting defendant’s motion in arrest of judgment and in dismissing the aggravated felony murder charge.¹ Defendant cross-appeals and raises seven assignments of error. We reject all of defendant’s assignments of error on cross-appeal without discussion.

With respect to the state’s contention that the trial court erred in granting the motion in arrest of judgment and in dismissing the aggravated felony murder charge, defendant acknowledges that Dasa controls. However, he asserts that Dasa was incorrectly decided and asks that it be overruled. We decline defendant’s invitation and adhere to our analysis in Dasa. Accordingly, the trial court erred in granting defendant’s motion in arrest of judgment and in entering an amended judgment dismissing the aggravated felony murder charge.

On appeal, order arresting judgment on Count 1 reversed and remanded, amended judgment vacated and remanded with instructions to reinstate conviction for aggravated murder, and for resentencing; on cross-appeal, affirmed.

1 In view of our resolution of that issue, we need not address the state’s sentencing-related assignment of error.