Oregon Appellate Court 11-16-11
by: Abassos • November 15, 2011 • no comments
Read the full article for details about the following new cases:
- There's No Such Thing as Merger for Sentencing
- Repeat Property Offender - A Court-Martial is not a Prior Conviction
There's No Such Thing as Merger for Sentencing
Merger is merger of conviction. There is no merger for sentencing:
The judgment's language which purports to "merge" those counts "[f]or the purposes of imposing sentence" does not serve to merge defendant's guilty verdicts
The state agreed that 12 counts of negotiating a bad check should merge into 3 counts of theft where the thefts were merely aggregations of the negotiating charges. But the state argued that the defendant got what he wanted: merger for sentencing. The court corrects the plain error despite the lack of objection because the error is grave and the state has no interest in convicting a defendant twice for the same crime. State v. Earls
Repeat Property Offender - A Court-Martial is not a Prior Conviction
A military court-martial conviction is not a "Federal" conviction under 137.717, the repeat property offender law. Courts martial exist pursuant to the military authority of Article I of the Constitution. Federal courts exist pursuant to Article III and, as such, are required to follow such rules as trial by jury and grand jury indictment. Stated more succinctly, a Federal conviction under ORS 137.717 is one that is imposed by an Article III court. State v. Earls
