Multnomah County Circuit Court. 110532061. Kelly Skye, Judge. On appellant's petition for reconsideration filed October 15, 2014. On respondent's petition for reconsideration filed October 15, 2014. Opinion filed October 1, 2014. 265 Or.App. 730, 337 P.3d 845 .
Reconsideration allowed; former disposition withdrawn; reversed and remanded on Counts 2, 3, 6, 7, and 8; otherwise affirmed.
Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, for appellant's petition.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin K. Galli, Senior Assistant Attorney General, for respondent's petition.
Before Tookey, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.
[267 Or.App. 122] PER CURIAM
The state and defendant petition for reconsideration of our decision in State v. Truong, 265 Or.App. 730, 337 P.3d 845 (2014), contending that our disposition was erroneous. We grant reconsideration, and, for the reasons stated below, withdraw our former disposition and substitute a new one.
The judgment that defendant appealed reflected (1) convictions on Counts 2, 6, 7, and 8; (2) the merger of the guilty verdict on Count 3 with Count 2, and (3) defendant's acquittal on Counts 1, 4, and 5. On appeal, we concluded that the court committed an evidentiary error that was not harmless. Our disposition stated, " Reversed and remanded on Counts 2, 3, 6, 7, and 8; remanded for resentencing; otherwise affirmed."
On reconsideration, both parties contend that our disposition was erroneous because, having reversed and remanded on the five identified counts, there was no reason " to conduct a new sentencing hearing unless defendant is found guilty following a new trial." We agree. Accordingly, the parties are correct that we should not have remanded the case for resentencing.
Reconsideration allowed; former disposition withdrawn; reversed and remanded on Counts 2, 3, 6, ...