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State v. Sholedice

Supreme Court of Oregon

March 28, 2019

STATE OF OREGON, Petitioner on Review,
v.
NATHAN RUSSELL SHOLEDICE, Respondent on Review. STATE OF OREGON, Petitioner on Review,
v.
MICHELLE RAE SMITH, Respondent on Review.

          (CC 141765) (CA A158781) (CC 141766) (CA A158794)

         On respondent on review Smith's petition for reconsideration fled January 17, 2019; considered and under advisement February 26, 2019. [*]

          Mathew Blythe, Deputy Public Defender, Offce of Public Defense Services, Salem, fled the petition for reconsideration for respondent on review Smith.

          No appearance contra.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, and Nelson, Justices. [**]

         [364 Or. 576] Defendant Smith petitioned for reconsideration, asking the court to hold that, in her case, the state had failed to preserve the argument upon which it prevailed. She also argued that her case should be remanded to the Court of Appeals to consider a remaining assignment of error, rather than affirmed. The court allowed the petition for reconsideration. Held: (1) Defendant Smith's preservation argument is rejected; (2) the disposition from the original opinion is replaced with a new disposition, remanding defendant Smith's case to the Court of Appeals.

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

         [364 Or. 577] BALMER, J.

         Defendant Smith petitions for reconsideration of this court's decision in State v. Sholedice/Smith, 364 Or. 146, 431 P.3d 386 (2018), as it applies to her.[1] She argues first that this court erred in considering one of the state's arguments regarding the validity of the seizure of her property. The state prevailed on that argument in this court, but Smith argues that the state failed to preserve that argument during earlier proceedings in her appeal. We reject that ground for reconsideration without discussion.

         Smith also argues that this court erred in reversing in its entirety the Court of Appeals decision in her case, State v. Smith, 283 Or.App. 422, 387 P.3d 499 (2017), and affirming the trial court's judgment of conviction. She notes that, in addition to her challenge to the lawfulness of the seizure of her property-the issue upon which the Court of Appeals reversed her conviction-she also assigned error to the trial court's imposition of the so-called "mandatory state amount" of $60 on each conviction, a fine that, Smith argues, the trial court had no authority to impose. See State v. Easton, 278 Or.App. 167, 373 P.3d 1225 (2016) (discussing "mandatory state amount" and repeal of statute authorizing its assessment). Because the Court of Appeals reversed the trial court judgment on different grounds, it had no occasion to consider her assignment of error regarding the mandatory state amount.

         Smith asserts that this court's disposition of her case-reversing the Court of Appeals decision and affirming the trial court judgment-was erroneous because neither this court nor the Court of Appeals considered her remaining assignment of error. We agree. Consistent with our usual practice, Smith's case should be remanded to the Court of Appeals to consider her other assignment of error. Accordingly, we allow Smith's petition for reconsideration and modify the disposition in State v. Sholedice/Smith, at 364 Or at 147, 170, as follows:

[364 Or. 578] "In Sholedice, the decision of the Court of Appeals is reversed, and the judgment of the circuit court is affirmed. In Smith, the decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for consideration of defendant's remaining assignment of error."

         The petition for reconsideration is allowed. The former opinion is ...


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