State v. Smith ( 1990 )

FADELEY, J.,

dissenting.

I dissent for the reasons stated in the dissenting opinions in State v. Moen, 309 Or 45, 786 P2d 111 (1990) and State v. Wagner (II), 309 Or 5, 786 P2d 93 (1990). I believe the court should assess and fix final punishment now under the statute rather than sending this case back to the trial court for a further penalty phase trial which will lead to further delay and may lead to further appeals costly to the public.