State v. Leroy

FILED: July 10, 2002

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

GEORGE THOMAS LEROY,

Appellant.

960130612, 960634217, 960634256; A96972 (Control), A96973, 96974
(Cases Consolidated)

Appeal from Circuit Court, Multnomah County.

James R. Ellis, Judge.

On respondent's petition for reconsideration filed April 19, 2002. Opinion filed April 21, 1999. 160 Or App 88, 979 P2d 314 (1999).

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, for petition.

No appearance contra.

Before Edmonds, Presiding Judge, and Deits, Chief Judge, and Armstrong, Judge.

PER CURIAM

Reconsideration allowed; previous opinion modified; affirmed.

PER CURIAM

The state moves for reconsideration of our decision in State v. Leroy, 160 Or App 88, 979 P2d 314 (1999), in which we reversed several of defendant's convictions based on our original decision in State v. Amini, 154 Or App 589, 963 P2d 65 (1998), rev'd 331 Or 384, 15 P3d 541 (2000), on remand 175 Or App 370, 28 P3d 1204, rev den 333 Or 73 (2001). The state argues that our later decision in Amini, after the Supreme Court's remand, shows that our original decision in this case was incorrect. We agree.

After our original decision in this case, the Supreme Court granted the state an extension of time that gave it until 14 days after the appellate judgment issued in Amini to file a petition for review of our original decision. When the state failed to file a petition for review in that time, it moved to reactivate the case in the Supreme Court. That court denied the motion on the ground that, with the expiration of the extension of time, the case was again active in this court. The state then moved that we grant it leave to file an untimely petition for reconsideration. We allowed the motion, and the state filed the petition that is now before us. Defendant has not filed a response.

On the merits, the trial court did not err in giving an instruction on the consequences of a verdict of guilty but insane under our second decision in Amini. Defendant's other assignment of error does not require discussion. We allow the petition for reconsideration and modify our disposition to affirm all of his convictions.

Reconsideration allowed; previous opinion modified; affirmed.