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TARWATER v. CUPP

TC 144,280, CA A37898, SC S33884.

748 P.2d 125 (1988)

304 Or. 639

Ronald TARWATER, Respondent On Review, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Petitioner On Review.

Supreme Court of Oregon, In Banc.

Decided January 6, 1988.

Attorney(s) appearing for the Case

Terry Ann Leggert, Asst. Atty. Gen., Salem, argued the cause and filed the briefs for petitioner on review. With her on the briefs were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Stephen H. Gorham, Salem, argued the cause and filed the briefs for respondent on review.

CAMPBELL, Justice.

This is a post-conviction case. The issues are whether the jury instructions on lesser included offenses were "acquittal first" instructions in violation of the Allen-Ogden rule1 and, if so, did Tarwater receive inadequate assistance of counsel because his trial counsel requested the instructions. We answer both issues in the affirmative. We affirm the Court of Appeals which reversed the post-conviction court...

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