State v. Skaggs

Under ORS 138.222(5)(b), when an appellate court considers a case with multiple counts including at least one felony, if it reverses the judgment of any count and affirms the others, the case must be remanded to the trial court for resentencing.

Defendant was convicted of one count of delivery of heroin within 1,000 feet of a school, one count of unlawful delivery of heroin, and one count of unlawful possession of heroin. Defendant argues, and the State concedes, that the trial court plainly erred when it failed to merge the conviction for unlawful delivery of heroin with the conviction for unlawful delivery of heroin within 1,000 feet of a school. The Court accepted the State’s concession and corrected the error by remanding the case to the trial court to merge the two convictions and resentence Defendant. The State argued that the case only needed to be remanded for a corrected judgment, as opposed to also being remanded for resentencing. However, when the Court reverses the judgment of conviction of one count and affirms the other counts (where one of those counts are for a felony), the Court is required to remand the case for resentencing. Reversed and remanded for resentencing, otherwise affirmed.