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State v. Sharp

Court of Appeals of Oregon

April 16, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
LEE RAY SHARP, Defendant-Appellant

Josephine County Circuit Court. 120096M. Lindi L. Baker, Judge. On appellant's petition for reconsideration filed March 6, 2014. On respondent's petition for reconsideration filed March 19, 2014. Opinion filed March 5, 2014. 261 Or.App. 554, 323 P.3d 519 .

Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, for appellant's petition.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Senior Assistant Attorney General, for respondent's petition.

Before Duncan, Presiding Judge, and Nakamoto, Judge, and DeVore, Judge.

OPINION

Page 980

[262 Or.App. 328] PER CURIAM

Defendant appealed from a judgment of conviction, contending that the trial court erred in denying his motion for a judgment of acquittal on Count 3, which charged him with attempted assault of a public safety officer. ORS 163.208; ORS 161.405. Defendant argued that the state had failed to prove venue as to that count. While defendant's appeal was pending, the Oregon Supreme Court issued its decision in State v. Mills, 354 Ore. 350, 312 P.3d 515 (2013), in which it overruled its prior decisions that required the state to prove venue at trial and held that, if a defendant disputes venue, the defendant must challenge it through a pretrial motion. Following Mills, we reversed and remanded " as to Count 3 for the trial court to follow the procedure identified in Mills. " State v. Sharp, 261 Or.App. 554, 556, 323 P.3d 519 (2014).

Defendant had also been convicted of one count of resisting arrest (Count 1), and a second count of attempted assault of a public safety officer (Count 4), but did not challenge those convictions on appeal. Our tagline stated, " Conviction on Count 3 reversed and remanded; remanded for resentencing; otherwise affirmed."

Both defendant and the state have filed petitions for reconsideration, asserting that our tagline is inconsistent with the holding of the opinion. Both contend that resentencing is unnecessary. We agree and, therefore, allow reconsideration, withdraw our former tagline, and replace it with the following: onviction on Count 3 reversed and remanded; otherwise affirmed.

Reconsideration allowed; former disposition withdrawn; conviction on Count 3 reversed and remanded; otherwise affirmed.


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