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Oregon Appellate Court--June 13, 2018

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by: Rankin Johnson IV • June 22, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • PROBATION-Basis to arrest for violation

Although a probation officer can order the arrest of a probationer based on reasonable suspicion, a police officer can only arrest based on the traditional standard of probable cause. Reversed and remanded.

The trial court ruled on the basis that the arresting officer had “reasonable grounds to believe” that defendant had violated his probation. Because that was below the requisite standard, the matter was returned to the trial court for further proceedings.

State v. Smith 292 Or App 335 (June 13, 2018) (Armstrong, J.)

  • SEARCH AND SEIZURE-Privacy interest

Defendant, a guest at a house searched pursuant to a warrant, lacked a protected privacy interest. Affirmed.

E’s house was searched pursuant to a warrant. Defendant was a romantic partner to a former roommate, had come to the house to get money from another resident, and had entered with E’s knowledge but no express invitation. At the time of the search, defendant was standing on the back steps, and a plastic bag containing methamphetamine was underneath the steps. Because defendant was not invited to use the back steps, he had no privacy interest there.

State v. Gonzales 292 Or App 342 (June 13, 2018) (Armstrong, J.)

  • EVIDENCE-In-court identifications

In-court identification was proper. Affirmed.

A witness, S, saw a white Cadillac driving erratically. She followed it to a parking lot and spoke with the driver when he got out of the car. S called the police, and, when police arrived identified the driver. S had recently observed, and spoken to, the driver before identifying the driver to the police, and therefore the trial court did not err in admitting the identification.

State v. Harrell 292 Or App 348 (June 13, 2018) (Ortega, J.)


  • POST-CONVICTION RELIEF-Conduct of hearing

Trial court misconstrued petitioner’s argument, and thus applied the wrong standard in rejecting it. Reversed.

Petitioner was convicted of sex offenses. In post-conviction, after counsel filed the petition, petitioner filed a Church notice asserting that trial counsel had provided ineffective assistance with respect to DNA evidence. The trial court declined to take action on the Church notice, based on the court’s conclusion that petitioner’s argument could have been raised on appeal, and therefore could not be raised in PCR. The Court of Appeals disagreed, reasoning that the DNA argument could not have been raised on appeal and therefore was a possible argument in PCR. The matter was remanded for the post-conviction court to reconsider using the correct standard.

Middleton v. Premo 292 Or App 363 (June 13, 2018) (Hadlock, J.)

  • TRIAL PROCEDURE-Conflict between oral and written judgment

Trial court erred by imposing a higher sentence in the written judgment than it imposed orally at sentencing. Reversed and remanded.

Defendant was convicted of two counts of DUII. The trial court orally imposed a fine of $1500, but the written judgment imposed a fine of $1755, perhaps including a $255 DUII conviction fee. Because the court’s intent was not clear, the matter was remanded for resentencing.

State v. Tison 292 Or App 369 (June 13, 2018) (Tookey, J.)

  • CIVIL COMMITMENT-Time of hearing

Trial court should have dismissed civil commitment case because hearing was not held within five days of appellant being involuntarily hospitalized. Reversed.

State v. L.O.W. 292 Or App 376 (June 13, 2018) (Garrett, J.)

  • PROBATION-Corpus Delicti rule

Defendant’s uncorroborated admission that he was using methamphetamine was sufficient to revoke his probation. Affirmed.

State v. Bastow 292 Or App 383 (June 13, 2018) (Garrett, J.)

  • POST-CONVICTION RELIEF-Pleading requirements

Basis on which PCR court granted relief was not alleged in the petition. Reversed. Allegation that trial counsel failed to discover witnesses did not encompass claim that trial counsel failed to interview known witnesses, and thus the PCR court erred by granting relief on unpleaded claim.

Ogle v. Nooth 292 Or App 387 (June 13, 2018) (DeHoog, J.)

  • DUII-Date of prior convictions

In determining whether a prior DUII offense is within ten years of the current offense for purposes of the felony-DUII statute, the relevant date is the judgment date rather than the date the offense was committed. Affirmed.

State v. Werner 292 Or App 397 (June 13, 2018) (Shorr, J.)

  • STALKING/VRO/FAPA-Request for findings

Respondent’s complaint that FAPA court made inadequate findings to support FAPA order renewal was unpreserved, because respondent did not request findings at the hearing. Reversed.

J.J.N v. Neuman 292 Or App 232 (June 13, 2018) (Per curiam)