STATE v. BENSON (2003)

Defendant appeals his judgment of conviction and sentence for two counts of felony murder of one victim based on two theories:  burglary and robbery.   ORS 163.115.   We affirm without discussion four of defendant's five assignments of error.   Defendant's fifth assignment is that the trial court erred in failing to merge defendant's convictions of felony murder and in sentencing defendant consecutively on two convictions for the murder of one person.   The state concedes error.   We agree.

ORS 163.115 elevates a homicide to murder when it is committed in the course of various enumerated felonies.   In this case, defendant killed the victim in the course of committing two qualifying felonies.   Under State v. Barrett, 331 Or. 27, 10 P.3d 901 (2000), and former ORS 161.062(1), repealed by Or. Laws 1999, ch. 136, § 1 (providing for separate punishments for separate statutory violations), only one statutory provision was violated, albeit under two different theories, and therefore only one conviction of felony murder may be entered.   The trial court erred in failing to merge defendant's convictions for felony murder.

Judgments of conviction for felony murder vacated and remanded for entry of amended judgment of felony murder reflecting that defendant was convicted based on both theories and for resentencing.

 PER CURIAM.