State v. Flores

Under ORS 161.067, the court must merge two convictions when a defendant's acts constitute the same conduct or criminal episode, violate two or more statutory provisions, and all elements of one offense are necessarily included in the commission of the other offense.

Defendant appeals his convictions for unlawful use of a weapon (UWW) with a firearm and felon in possession of a firearm (FIP) with a firearm. Defendant appealed, arguing the two convictions should have merged under ORS 161.067, or, if not, he should receive concurrent sentences. The Court of Appeals reiterated its interpretation of ORS 161.067 that when the defendant’s acts constitute the same conduct or criminal episode, violate two or more statutory provisions, and all the elements of one offense are necessarily included in the commission of the other, the court must merge the sentences. Since FIP-firearm contains all of the elements of UUW-firearm, the two counts must be merged under ORS 161.067. The Court further determined that the “with a firearm” factor from ORS 161.610(2) is an element of the offense that it aggravates. Finally, because the court may only impose one “with a firearm” sentence, yet Defendant was charged with and found guilty of two “with a firearm” felonies, the lower court should have merged the two counts before sentencing even occurred. In regard to Defendant's second assignment of error, because the counts should have merged, there were not two separate convictions, and consecutive sentences were therefore not authorized. Reversed and remanded for entry of a single conviction for felon in possession of a firearm with a firearm and for resentencing; otherwise affirmed.