State v. Galloway

A trial court can order a retrial limited to the issues that caused the appellate court to reverse the conviction on the greater offense because "A defendant's 'right to trial by jury on all elements of the offenses of which [a defendant] has been convicted' is not violated in that circumstance because the state has proved to 'a jury all elements of the offenses of which he is accused' in the same case." State v. Boots, 308 Or 371, 577-79.

Defendant appealed "supplemental judgment of conviction that was entered following his limited retrial on several counts." Defendant assigned error to the trial court "granting the state's motion for issue preclusion and instructing the jury 'that defendant was guilty of arson and recklessly endangering another person [as a matter of law,] and that those issues were removed from the jury's consideration." Defendant argued that the decision was distinguishable from State v. Boots, 315 Or 572, 848 P2d 76, cert den, 510 US 1013 (1993) (Boots II). The State argued that "'[t]he trial court correctly held that Boots II control[ed] this issue' because '[t]his case. . . involves an affirmance on direct appeal of an adjudication of guilt and then enforcement of that adjudication on remand for retrial in the same case.'" A trial court can order a retrial limited to the issues that caused the appellate court to reverse the conviction on the greater offense because "a defendant's 'right to trial by jury on all elements of the offenses of which [a defendant] has been convicted' is not violated in that circumstance because the state has proved to 'a jury all elements of the offenses of which he is accused' in the same case." Boots II, 308 Or 371, 577-79. The Court concluded that the defendant's right "'not to be put in jeopardy twice for the same offense,' his 'right to trial by jury on all elements of the offenses of which he has been convicted,' and his 'right to be presumed innocent of the crime with which he is charged' ha[d] not been violated," because the jury instructions correctly focused the jury on the remaining elements of the charges in line with prior decisions. Affirmed.