State v. Gruver

A court cannot convict a defendant 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, who was serving a sentence in the Lincoln County jail, was assigned to work at the local animal shelter cleaning kennels and feeding animals. After he walked away from the shelter, he was charged with and convicted of escape in the second degree under ORS 162.155(1)(c) (escape from a "correctional facility") and escape in the third degree under ORS 162.145(1) (escape from "custody"). On appeal, Defendant argued that leaving the shelter was neither of those crimes but was instead a violation of a different statute, ORS 162.175, which criminalizes "unauthorized departure." After the Court of Appeals held for Defendant, reversing his convictions on the escape charges, and remanding for entry of a judgment of conviction for unauthorized departure, Defendant petitioned for reconsideration. The Court held that the entry of a judgment of conviction for an uncharged offense was in error. A defendant must have notice and an opportunity to prepare a defense, unless the convicted offense was a lesser-included offense. The indictment did not allege facts that satisfied the elements of unauthorized departure. Reconsideration allowed; former disposition withdrawn; convictions for second- and third-degree escape reversed.