STATE v. CARTER (2019)

The state petitions for reconsideration of our decision in State v. Carter, 295 Or. App. 145, 433 P.3d 741 (2018), wherein we reversed defendant’s convictions on two counts due to improper joinder under State v. Poston, 277 Or. App. 137, 370 P.3d 904 (2016), adh’d to on recons., 285 Or. App. 750, 399 P.3d 488, rev. den., 361 Or. 886, 403 P.3d 761 (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 P.3d 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, 450 P.3d 1034. 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 P.3d 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.

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Reconsideration allowed; former disposition withdrawn; reversed and remanded for entry of judgment allowing the demurrer.

PER CURIAM