Opinion
Nos. 01FE0370AB; A123001.
October 4, 2006.
Appeal from Circuit Court, Deschutes County. Alta J. Brady, Judge.
Andrew S. Chilton, and Chilton, Ebbett Rohr, LLC for petition.
Before Armstrong, Presiding Judge, and Brewer, Chief Judge, and Rosenblum, Judge.
PER CURIAM
Reconsideration allowed; former disposition withdrawn; vacated and remanded with instructions to enter judgment for a single conviction of aggravated murder; otherwise affirmed.
Defendant was convicted of two counts of aggravated murder and two counts of conspiracy to commit aggravated murder, all of which involved the killing of a single individual. He appealed and assigned error to the trial court's failure to merge all of the convictions into a single conviction of aggravated murder. Defendant had not raised the error below, so he requested review of the error as one that is apparent on the face of the record. See, e.g., State v. Wilkins, 175 Or App 569, 586, 29 P3d 1144 (2001); State v. Mendosa, 97 Or App 263, 264, 775 P2d 905 (1989). We affirmed the judgment without an opinion notwithstanding that the state conceded the errors that defendant had assigned, including the principle that they were errors that could be reviewed as apparent error.
Defendant has petitioned us to reconsider our decision, arguing that we erred in affirming the judgment, particularly in light of the state's concession, which was well taken in light of our case law. We agree with defendant, grant his petition, and vacate the judgment with directions to enter a judgment for a single conviction of aggravated murder. We otherwise affirm the judgment.
Reconsideration allowed; former disposition with-drawn; vacated and remanded with instructions to enter judgment for a single conviction of aggravated murder; otherwise affirmed.