784
On appellant’s petition for reconsideration filed February 1, petition for
reconsideration allowed, former disposition (308 Or App 783,
481 P3d 959)
adhered to March 10, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSE ANTONIO HERNANDEZ,
Defendant-Appellant.
Marion County Circuit Court
16CR65578; A166220
483 P3d 59
J. Channing Bennett, Judge.
Zachary Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
PER CURIAM
Petition for reconsideration allowed; former disposition
adhered to.
Cite as
309 Or App 784 (2021) 785
PER CURIAM
In this criminal case, defendant seeks reconsideration of our disposition in State v. Hernandez, 308 Or App
783,
481 P3d 959 (2021). In that case, we agreed with defendant’s arguments with respect to the motion to suppress,
and therefore reversed and remanded Counts 2, 3, and 4.
Id. at 791-92. We further vacated and remanded Counts
1 and 6 for the trial court to reconsider defendant’s midtrial request to waive a jury trial.
Id. at 792-93. The tagline provides: “Convictions on Counts 2, 3, and 4 reversed
and remanded; convictions on Counts 1 and 6 vacated and
remanded; otherwise affirmed.” Defendant now seeks clarification of that tagline and our disposition on appeal. In
defendant’s view, because we reversed or vacated “all counts
of conviction,” it was unclear what the purpose of the last
portion of the tagline—“otherwise affirmed”—meant. A
close reading of the judgment on appeal provides the answer.
It is true, as defendant observes, that our disposition reversed or vacated “all counts of conviction” arising out
of the judgment. The judgment, however, disposed of more
than just the counts that resulted in a conviction. As noted
in our opinion, and as defendant acknowledges in his petition for reconsideration, the trial court granted defendant’s
motion for judgment of acquittal as to Count 5. See id. at 785
n 1. The judgment on appeal incorporates the trial court’s
disposition on that count, and thus our tagline resolving the
appeal should also explicitly provide a disposition for that
portion of the judgment.1
Although it could be left unsaid that the judgment
of acquittal on Count 5 is undisturbed by our decision, we
conclude that the better practice is for the tagline to affirmatively provide a disposition for all of the counts resolved
by the judgment on appeal. As we have previously observed,
a “criminal defendant does not appeal specific ‘counts’ or
1
In a different context, we observed that the Uniform Criminal Judgment
(UCJ) includes a section for counts that are disposed of with no conviction, which
can help avoid confusion in later proceedings. See State v. Chesnut, 283 Or App
347, 351 n 4,
388 P3d 1237 (2017) (describing the UCJ); see also ORS 137.071(2)(f)
(providing that a judgment in a criminal action must, among other requirements,
“[s]pecify clearly the court’s determination for each charge in the information,
indictment or complaint”).
786 State v. Hernandez
convictions; appeal is taken from a judgment in a criminal
proceeding.” State v. Muyingo,
226 Or App 327, 330,
203 P3d
365, rev den,
346 Or 364 (2009) (emphasis in original). In
this case, given that no party suggests that the portion of
the judgment documenting the trial court’s disposition on
Count 5 was a scrivener’s error or defective in some way, the
“otherwise affirmed” part of our tagline closes the loop such
that the tagline taken as a whole provides a disposition for
all of the counts resolved by the judgment on appeal.
Petition for reconsideration allowed; former disposition adhered to.
