concurring.
I write separately to point out that, given the Oregon Supreme Court’s recent decisions in State v. Barnum, 333 Or 297, 39 P3d 178 (2002), and State v. Barrett, 331 Or 27, 10 P3d 901 (2000), the answer in the present case is less than obvious. I join in the majority because the answer it arrives at is as good as any, given the confusing state of the law on the question of “merger of sentences” and “merger of convictions.”
As I see it, the crux of the problem is this: In Barrett, the court interpreted the “separately punishable offenses” language in former ORS 161.062(1), repealed by Or Laws 1999, ch 136, § 1, which is identical to ORS 161.067(1), and concluded that, when the conditions of the statute were not satisfied, the trial court was to “enter one judgment of conviction reflecting the defendant’s guilt on the charge” but separately enumerate each of the existing aggravating factors for aggravated murder to reflect each of the separate theories under which the jury found the defendant guilty. 331 Or at 37. In short, the court in Barrett interpreted former ORS 161.062(1) to require “true merger,” requiring the entry of just one conviction despite the jury’s finding of multiple bases for that conviction. In Barnum, without reference to former ORS 161.062(1) or its identical counterpart ORS 161.067(1), the court cited Barrett for the proposition that “[i]f the trier of fact found that each element of each count had been proved beyond a reasonable doubt, then defendant properly could be convicted of both counts of burglary, regardless of whether the two violations were separately punishable.” 333 Or at 302 (citing Barrett, 331 Or at 36-37). The court then concluded that, because such evidence existed in that case, “defendant properly was charged and convicted of two counts of burglary.” Id. at 303 (emphasis added). The court then went on to address whether the “two counts” of burglary were “separately punishable offenses” under ORS 161.067(3), concluded that they were not, and further concluded that, although the offenses did not merge, they could not be punished separately. Id.
Thus, the court has interpreted the term “separately punishable offenses” in subsection one of those identical statutes to require “true merger” and the entry of one conviction, *158but has interpreted the term “separately punishable offenses” in subsection three to require the entry of two convictions that are not “separately punishable.” That appears to conflict with the basic rule of statutory construction that the “use of the same term throughout a statute indicates that the term has the same meaning throughout the statute.” PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Until the court clarifies when “separately punishable offenses” should result in. “true merger” or “merger for sentencing purposes” only, courts and litigants will continue to struggle with that question, as we have done here.