State v. Weivoda

FILED: September 29, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CHAROLETTE JOANNE WEIVODA,
aka Charlotte Weivoda,

Defendant-Appellant.

Umatilla County Circuit Court
CF060507
A139265

Garry L. Reynolds, Judge.

Argued and submitted on September 02, 2010.

Gary B. Bertoni argued the cause for appellant.  With him on the brief was Bertoni & Associates.

Paul L. Smith, Assistant Attorney General, argued the cause for respondent.  On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Janet A. Metcalf, Assistant Attorney General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Judge.

PER CURIAM

Reversed and remanded with instructions to enter judgment reflecting one conviction for aggravated murder with the judgment separately enumerating the aggravating factors upon which the conviction is based; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of two counts of aggravated murder and one count of murder involving a single victim and sentenced on all three counts.  The court merged the conviction for murder with one of the convictions for aggravated murder.  It did not merge the two convictions for aggravated murder.  Although defendant did not object, failure to merge the two aggravated murder convictions was plain error that we exercise our discretion to review.  State v. Acremant, 338 Or 302, 330, 108 P3d 1139, cert den, 546 US 864 (2005).  "We therefore remand the case for entry of [a] corrected judgment of conviction reflecting defendant's guilt on the charge of aggravated murder * * * with the judgment separately enumerating the aggravating factors upon which [the] conviction is based."  Id.  In a second assignment of error, defendant argues that the statute of limitation for aggravated murder is three years and not unlimited.  We rejected that argument in State v. Anthony, 234 Or App 659, 228 P3d 1222 (2010).

Reversed and remanded with instructions to enter judgment reflecting one conviction for aggravated murder with the judgment separately enumerating the aggravating factors upon which the conviction is based; remanded for resentencing; otherwise affirmed.