Sate v. Nesbit

Under ORS 137.717(1)(a)(A) (2009), where an indictment contains multiple counts of similar conduct, before a court can use the sentence for one count as a “previous conviction” for purposes of sentencing for the other counts, the State bears the burden to prove that the counts could be tried separately without violating double jeopardy principles.

Defendant appealed a judgment for three counts of aggravated theft in the first degree under ORS 164.057. Defendant filed a false claim for benefits with an insurance company for wage loss caused by an injury and received checks, which he deposited. The State separated the charges into date ranges during which the value of the checks exceeded $10,000, resulting in three counts charged in the indictment. Defendant entered a plea of no contest to the three counts; the court entered a sentence for Count 1, and then used that sentence as a “previous conviction” to impose enhanced sentences for Count 2 and 3. On appeal, the State argued that Defendant had stipulated to the three separation counts, which was sufficient proof that the offenses did not arise from the same criminal episode despite the indictment’s failure to allege the three offenses were part of separate criminal episodes. The Court held that because the State bore the burden of proving the three crimes were not part of the same criminal episode under ORS 137.717(1)(a)(A) (2009), and the State failed to specify a legal theory or facts that showed the three counts could have been tried separately without violating double jeopardy principles, the State failed to meet their burden. Reversed and remanded for resentencing; otherwise affirmed.