State v. Slatton

ORS 164.055(1)(a) and (d) are not separate statutory provisions for the purposes of merging convictions.

Defendant appealed his conviction for two counts of first-degree theft, arguing that the trial court erred in its refusal to merge the two guilty verdicts into a single conviction. The first conviction was for committing theft of property worth more than $1,000. The second conviction – resulting from the same incident as the first – was for theft of a firearm. Defendant argued that merger of the convictions is not precluded. He contended that the two subparagraphs of ORS 164.055(1) (the statute) under which he was separately convicted were not separate statutory provisions, but represent a single crime of theft which is then elevated to first-degree if additional elements in the additional subparagraphs are met. The Court held that the statute does not preclude merger of Defendant’s two guilty verdicts because the two subparagraphs of the statute were not enacted to create different crimes; they were enacted to specify different ways of committing a particular degree of theft, which may be punished more seriously than lesser degrees of theft. The Court explained that although each subparagraph may represent a different legislative concern, that alone does not mean that the legislature intended to create multiple crimes from the subparagraphs. The Court found that the trial court erred in failing to merge the two convictions. Reversed and remanded with instructions to merge the two convictions and for resentencing.