State v. Pittman

If on reconsideration the court finds that a prior decision erroneously instructed a lower court to enter a judgment for a lesser-included offense, when the elements of that offense were not alleged in the pleadings, the court may reconsider the case and alter its instructions accordingly.

The State and Defendant both requested reconsideration of the Court's decision in State v. Pittman, 275 Or App 518 (2015), which remanded the case to the trial court for resentencing with instructions to enter a conviction for second-degree robbery rather than first-degree robbery. Both parties agree that second-degree robbery was never alleged in the original trial, and request reconsideration of the decision, arguing that the proper disposition of the case was to remand with instructions to enter a conviction for third-degree robbery. The Court agreed with the parties, holding that while third-degree robbery is a subsumed, lesser-included offense of first-degree robbery, second-degree robbery is not. Accordingly, the Court remanded the case for resentencing with instructions to enter a conviction for third-degree robbery. Otherwise affirmed.