State v. Sheikh-Nur

ORS 138.225(5)(b) states that "[i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts."

Defendant appealed his dual conviction under ORS 475.890 and 475.890(3), the state conceded to Defendant’s assignment of error, and the two counts were remanded for the greater offense. This disposition required a remand for sentencing under 138.222(5)(b). On appeal, Defendant argued his four consolidated convictions were sentenced as a “package” and therefore those judgments comprised the "case." In response, the state argued that the Court should consider each conviction a "separate case for purposes of the statute," and thus resentencing should include only those in the instant judgment. ORS 138.225(5)(b) states that "[i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts." The Court held that legislative history established Congress’ knowledge that "all charges tried together would constitute 'the case' for purposes of resentencing under the bill." Because the sentence is packaged under permissive-joinder, all consolidated cases must be remanded for sentencing. Convictions of ORS 475.890 and ORS 475.890(3) reversed and remanded for entry of judgment for one conviction of violating ORS 475.890(3); this- and Defendant's other three convictions remanded for resentencing.