State v. Watts ( 1978 )

PER CURIAM.

Defendant was separately convicted and sentenced for the offenses of robbery in the first degree and assault in the first degree. Both offenses were based on the same act — the use of a firearm in attempting to commit theft. Pursuant to State v. Steele, 33 Or App 491, 577 P2d 524 (1978), the trial court should have entered only one conviction and sentence, for robbery.

The state argues that since the defendant did not raise the issue below, we should not consider it on appeal, citing several cases of the Oregon Supreme Court and this court in which we have so determined.¹ The distinction is that in those cases the rule was established. Here the dispositive opinion. State v. Steele, supra, had not been published at the time the trial court entered its judgment.

The judgment order is affirmed except for the conviction and sentence for assault, which is reversed.

Affirmed in part; reversed in part.

1 The state does not dispute the defendant’s contention on the merits.