State v. Tate

• Decision Date: 09 January 2013
• Docket Number: A144935.,CR0700655
• Citation: 295 P.3d 683,254 Or.App. 509
• Parties: STATE of Oregon, Plaintiff–Appellant Cross–Respondent, v. Wendell Kenneth TATE, Defendant–Respondent Cross–Appellant.
• Court: Oregon Court of Appeals

254 Or.App. 509

295 P.3d 683

STATE of Oregon, Plaintiff–Appellant Cross–Respondent,

v.Wendell Kenneth TATE, Defendant–Respondent Cross–Appellant.

CR0700655; A144935.

Court of Appeals of Oregon.

Argued and Submitted Nov. 27, 2012.

Decided Jan. 9, 2013.

Appeal from Circuit Court, Clackamas County.

Ronald D. Thom, Judge.

Matthew J. Lysne, Assistant Attorney in Charge, Criminal Appeals, argued the cause for appellant-cross-respondent. With him on the opening brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. With him on the answering brief on cross-appeal were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Marc D. Brown, Deputy Public Defender, argued the cause for respondent-cross-appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before ORTEGA, Presiding Judge, and HASELTON, Chief Judge, and SERCOMBE, Judge.

PER CURIAM.

A jury convicted defendant of aggravated felony murder, ORS 163.095(2)(d); murder, ORS 163.115, and first-degree burglary, ORS 164.225. The trial court later granted defendant's motion in arrest of judgment with respect to the aggravated murder conviction, vacated that conviction, and entered an amended judgment dismissing that charge. The state appeals, asserting that, in light of State v. Dasa, 234 Or.App. 219, 227 P.3d 228,rev. den.,349 Or. 173, 243 P.3d 468 (2010), the trial court erred in granting defendant's motion in arrest of judgment and in dismissing the aggravated felony murder charge.¹ Defendant cross-appeals and raises seven assignments of error. We reject all of defendant's assignments of error on cross-appeal without discussion.

With respect to the state's contention that the trial court erred in granting the motion in arrest of judgment and in dismissing the aggravated felony murder charge, defendant acknowledges that Dasa controls. However, he asserts that Dasa was incorrectly decided and asks that it be overruled. We decline defendant's invitation and adhere to our analysis in Dasa. Accordingly, the trial court erred in granting defendant's motion in arrest of judgment and in entering an amended judgment dismissing the aggravated felony murder charge.

On appeal, order arresting judgment on Count 1 reversed and remanded, amended judgment vacated and remanded with instructions to reinstate conviction for aggravated murder, and for resentencing; on cross-appeal, affirmed.

1. In view of our resolution...