State v. Delaportilla

A court cannot convict on a charge for which the defendant was not indicted unless the conviction is for an offense that is a lesser-included offense within the offense charged in the indictment.

Defendant petitioned for reconsideration after the Oregon Court of Appeals reversed a conviction of second-degree assault and remanded for an entry of conviction for third-degree assault, believing a conviction of fourth-degree assault was appropriate. Defendant claimed that third-degree assault was not a lesser-included charge because the required element alleging the ages of the defendant and victim were not included in that charge, though the ages were alleged in other counts. The Court of Appeals agreed, stating that an offense is a lesser-included offense only when the elements of the lesser-included is included in the greater offense, or when the elements of the lesser-included offense are expressly included in the charging instrument. The Court held that "a court cannot convict on a charge for which the defendant was not indicted unless the conviction is for an offense that is a lesser-included offense within the offense charged in the indictment." Reconsideration allowed. Remanded for sentencing; otherwise affirmed.