State v. Postlethwait

ORS 161.067(1) provides, “when the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”

Defendant appealed his separate convictions for theft in the third degree and robbery in the second degree. Defendant alleged that the trial court erred by not merging his theft in the third-degree verdict with the robbery in the second-degree verdict. Defendant claims that because the elements of the theft conviction would be satisfied by the robbery in the second-degree elements, his verdicts should have emerged. The State concedes that the trial court committed plain error by entering separate convictions. ORS 161.067(1) provides, “when the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.” Merger is not precluded when convictions of robbery and theft are returned, and the theft is the underlying factual and legal predicate to the robbery. The Court agreed with the defendant and the State. It reasoned that the theft was the underlying conduct that gave rise to both the robbery and theft conviction. As such, merger was appropriate. Reversed and remanded for resentencing.