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Oregon Appellate Court, December 9, 2020

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by: Rankin Johnson • December 15, 2020 • no comments

 

Summarized by Rankin Johnson, OCDLA

SENTENCING - Consecutive probation sanctions

Revocation sentences for a single supervision violation must be concurrent. Reversed.

The court also held that, while stipulated sentences are not reviewable, an agreement that each party can argue for a sentence is not a 'stipulation' under that rule.

State v. Rusen 307 Or App 759 (December 9, 2020) (Lagesen) (Linn County, McHill)

STALKING AND FAPA ORDERS - Sufficiency

Respondent's false allegations directed against petitioner did not give rise to well-founded apprehension for petitioner's personal safety. Reversed.

B.M. v. Deaton 307 Or App 763 (December 9, 2020) (Lagesen) (Douglas County, Simmons)

DOUBLE JEOPARDY - Manifest necessity

Jeopardy represented by stipulated-facts trial was terminated on state's motion, permitting retrial, because defendant did not tender a written waiver of jury trial and was thus never in jeopardy. Affirmed.

The parties reached a settlement including a stipulated-facts trial, but defendant failed to submit a written waiver of jury trial. Accordingly, when a dispute arose over the terms of the settlement and the court declared a mistrial, constitutional double-jeopardy did not prevent a retrial. The court declined to consider, as unpreserved, defendant's statutory argument.

State v. Dykstra 307 Or App 766 (December 9, 2020) (DeHoog) (Washington County, Fun)

SEARCH AND SEIZURE - Officer safety

Bulge under defendant's coat that could have been a firearm was not a basis for an officer-safety search without evidence that defendant was a threat. Reversed.

The court rejected defendant's argument that, once he was handcuffed, he no longer presented a threat and therefore no further search was necessary. Rather, the court analyzed the handcuffing and the search as a unitary police action.

State v. Bailey 307 Or App 782 (December 9, 2020) (DeHoog) (Marion County, Leith)

PRESERVATION - Plain error

In light of change in search-and-seizure law under Arreola-Botello, trial court plainly erred in denying motion to suppress. Reversed.

At the motion-to-suppress hearing, defendant focused on whether the stop had been unlawfully extended, i.e., whether it had been unlawful in duration. In light of the change in the law, the argument on appeal focused on whether the stop had been unlawful in scope. The court explained that defendant's bare-bones motion to suppress, although it alleged that the stop was unlawful in "intensity and duration," did not preserve the argument that defendant made on appeal. The requirements of plain error review were satisfied by defendant's brief, although defendant did not expressly seek plain error review, and in light of the change in the law, the Court of Appeals chose to review the error.

State v. Hallam 307 Or App 796 (December 9, 2020) (James) (Douglas County, Burge)

SEARCH AND SEIZURE - Exploitation

Breath test was not exploitive of prior Miranda violation. Affirmed.

After a non-egregious Miranda violation, when officers failed to realize that circumstances had become compelling, they provided Miranda warnings and otherwise behaved lawfully.

State v. Beeson 307 Or App 808 (December 9, 2020) (Mooney) (Curry County, Beaman)

ASSAULT - Injury

Evidence that defendant slapped victim across the face insufficient to prove physical injury. Reversed.

State v. Larrazabal 307 Or App 831 (December 9, 2020) (Per curiam) (Washington County, Butterfield)