207
On respondent’s petition for reconsideration filed December 24, 2018;
reconsideration allowed, former disposition (295 Or App 145,
433 P3d 741)
withdrawn, reversed and remanded for entry of judgment allowing the
demurrer October 16, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
HAROLD WALTER CARTER,
Defendant-Appellant.
Multnomah County Circuit Court
14CR29528; A159493
451 P3d 1046
The state petitions for reconsideration of the Court of Appeals’ decision in
State v. Carter, 295 Or App 145,
433 P3d 741 (2019), wherein it reversed defendant’s convictions on two counts due to improper joinder under State v. Poston,
277 Or App 137,
370 P3d 904 (2016), adh’d to on recons,
285 Or App 750,
399 P3d
488, rev den,
361 Or 886 (2017). The state argues only that the Court of Appeals
should modify its original disposition to remand for entry of judgment allowing
demurrer. Held: In light of State v. Keith,
299 Or App 355,
450 P3d 1034 (2019),
the Court of Appeals allowed for reconsideration and modified the disposition to
remand for entry of judgment allowing the demurrer.
Reconsideration allowed; former disposition withdrawn; reversed and
remanded for entry of judgment allowing the demurrer.
Edward J. Jones, Judge.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, for respondent’s petition.
Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Allen, Judge pro tempore.
PER CURIAM
Reconsideration allowed; former disposition withdrawn;
reversed and remanded for entry of judgment allowing the
demurrer.
208 State v. Carter
PER CURIAM
The state petitions for reconsideration of our decision in State v. Carter, 295 Or App 145,
433 P3d 741 (2018),
wherein we reversed defendant’s convictions on two counts
due to improper joinder under State v. Poston,
277 Or App
137,
370 P3d 904 (2016), adh’d to on recons,
285 Or App 750,
399 P3d 488, rev den,
361 Or 886 (2017). In its petition, the
state does not challenge our holding that the indictment was
improperly joined or that defendant was prejudiced by the
improper joinder. However, the state argues that we should
“remand for further proceedings on the indictment, because
more than one possible remedy for the pleading error is available to the court.” After the state filed its petition, we issued
our opinion in State v. Keith,
299 Or App 355,
450 P3d 1034
(2019), in which we discussed the proper disposition when
a defendant has been harmed by improper joinder. Given
Keith, we allow the petition for reconsideration and affirm
our original disposition reversing both convictions, but modify our disposition to remand for entry of judgment allowing
the demurrer.
In Keith, we acknowledged that “our dispositional
tagline” in cases dealing with improper joinder “has varied.”
299 Or App at 360. Indeed, in some cases, we reversed without a remand, and in others, we reversed and remanded for
entry of judgment allowing demurrer. Ultimately, in Keith,
we allowed for reconsideration, and, in part, modified the
disposition to remand for entry of judgment allowing the
demurrer. Id. We explained:
“ORS 135.660 provides, ‘[u]pon considering the demurrer, the court shall give judgment, either allowing or disallowing it, and an entry to that effect shall be made in
the register.’ Additionally, ORS 135.670(1) provides that
‘[i]f the demurrer is allowed, the judgment is final upon the
accusatory instrument demurred to.’ As [State v. Warren,
364 Or 105, 129-30,
430 P3d 1036 (2018)] indicated, ‘when
a defendant establishes a proper ground for a demurrer to
an indictment, the defendant is entitled to entry of a judgment on the indictment.’ ”
Id.
Cite as
300 Or App 207 (2019) 209
The defendant in Keith was “entitled to a judgment
on the indictment, and the current post-trial judgment [did]
not suffice.” Id. The same is true in this case.
Reconsideration allowed; former disposition withdrawn; reversed and remanded for entry of judgment allowing the demurrer.
