State v. Zolotoff

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Criminal Procedure
  • Date Filed: 12-09-2015
  • Case #: A153858
  • Judge(s)/Court Below: Hadlock, J. for the Court; Sercombe; & Tookey
  • Full Text Opinion

Trial court may reconsider all counts of Defendant’s conviction for resentencing when on remand for reconsideration and resentencing for part of a felony package. Reversed and remanded for resentencing.

Defendant appealed trial court’s refusal to resentence defendant on remand from this Court. On remand, trial court was ordered to merge counts 2 and 4 of Defendant’s conviction and resentence. The trial court merged the counts and believed that the court lacked the authority to reconsider the terms of Defendant’s sentences on the surviving counts of the conviction.

The Court held that the trial court committed plain error in failing to resentence Defendant on remand. Under ORS 138.222(5) when an appellate decision affects all or part of a felony sentencing package, the trial court is required to resentence based on all convictions on remand. The trial court plainly erred when it refused Defendant’s request to alter the terms of his sentences based on the court’s faulty understanding that it was without authority to do so.

Reversed and remanded for resentencing.

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