State v. Pittman, 369 P.3d 99

Defendant was tried for first-degree robbery (ORS 164.415), acquitted of that charge, and convicted of second-degree robbery as a lesser-included offense.
On appeal this court held the indictment did not allege facts sufficient to support second-degree robbery because it failed to require proof that defendant represented he was armed with a dangerous weapon.
The parties jointly moved for reconsideration of the disposition, not the merits, and stipulated that third-degree robbery was necessarily alleged and proved at trial.
The state conceded it had not previously argued an alternative remedy but now agreed entry of a third-degree robbery conviction and resentencing was appropriate.
The court concluded it has constitutional authority (Art. VII (Amended), § 3) to direct entry of a lesser-included conviction when appropriate and, given the parties’ stipulation, reversed the second-degree conviction and remanded for entry of a third-degree robbery conviction and resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the indictment supported conviction for second-degree robbery	State initially upheld conviction but later stipulated remedy	Pittman argued indictment did not allege elements of second-degree robbery	Indictment insufficient for second-degree robbery; conviction reversed
Whether trial court necessarily found defendant guilty of a lesser-included offense	State now contends third-degree robbery was necessarily alleged and found	Pittman agreed third-degree robbery was included and proved	Court agreed third-degree robbery was alleged and proved; entry of that conviction directed
Whether appellate court may direct entry of a lesser-included conviction on remand	State and defendant invoked Art. VII (Amended), § 3 to permit entry	Pittman consented to that remedy	Court held it has authority to direct such relief and exercised it here
Remedy and disposition	State sought remand for entry of third-degree robbery conviction and resentencing	Pittman joined the request	Court allowed reconsideration, withdrew former disposition, reversed second-degree conviction and remanded for third-degree conviction and resentencing

State v. Pittman, 275 Or. App. 518 (recited prior ruling reversing second-degree robbery)
State v. Zimmerman, 170 Or. App. 329 (concluding indictment did not allege representation of being armed)
State v. Lopez, 151 Or. App. 138 (remanding for entry of lesser-included conviction where evidence failed to support charged offense)
State v. Lee, 105 Or. App. 329 (remanding with instructions to enter conviction for lesser-included offense)
State v. Burris, 270 Or. App. 512 (noting first-degree robbery is predicated on third-degree robbery)
State v. Delaportilla, 250 Or. App. 25 (a court cannot convict for an unindicted offense unless it is lesser-included)
State v. Barrie, 227 Or. App. 378 (due process requires notice of the crime charged)