STATE v. KYGER (2022)

Supreme Court of Oregon.

STATE of Oregon, Respondent on Review, v. Scott William KYGER, Petitioner on Review.

(CC 17CR08793) (SC S068337)

Decided: April 21, 2022

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, Justices.

Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, Salem, filed the petition for reconsideration on behalf of petitioner on review. Also on the petition was Ernest G. Lannet, Chief Defender. No appearance contra.

Defendant has petitioned for reconsideration of our decision in State v. Kyger, 369 Or. 363, 506 P.3d 376 (2022), objecting to the phrasing of footnote 3, which stated:

“Although defendant raised other issues in his petition for review, he failed to present any briefing or argument on those issues. Accordingly, we do not reach them.”

Id. at 367 n. 3, 506 P.3d 376. In his petition, defendant correctly points out that this court's order allowing review expressly limited review to the issue that we addressed in our opinion. Footnote 3 implies that defendant had, and abandoned, an opportunity to present argument on other issues. That is incorrect. Accordingly, we replace the text of footnote 3, quoted above, with the following:

“Although defendant raised other issues in his petition for review, we denied review on those issues, and they are not before us.”

The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified.

GARRETT, J.

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