Oregon Appellate Court - February 27, 2013

by: Jevans and Abassos • February 27, 2013 • no comments

With Joseph Westover and Xiaoxi Cheng.

The State Only Has to Return Seized Weed If the Case Is Dismissed on the Merits

The State cannot be required to return seized Marijuana unless the case is dismissed on the merits:

• The Oregon Medical Marijuana Act only requires the return of marijuana where (1) the District Attorney decides not to prosecute, (2) the defendant is acquitted or (3) the case is dismissed on the merits. ORS 475.323(2). Here, the case was dismissed without prejudice on statutory speedy trial grounds. Thus, ORS 475.323(2) does not apply.
• The more broadly applicable evidence-return statutes only authorize the return of “lawfully” owned items. ORS 133.643. Since marijuana may not be legally possessed under Federal law, it is not lawfully owned for the purposes of ORS 133.623 to 133.663.

State v. Ehrensing, ___ Or App ____ (Feb. 27, 2013).

Speedy Trial—Time Spent By the Defense Pursuing Contempt Charges is Attributable to the Defense

Recounting the 835-day saga of a misdemeanor DUII case, the appellate court reverses the trial court’s speedy trial dismissal, finding that only 190 days of delay were attributable to the State. Among its many rulings, the court holds that time spent pursuing contempt charges against a police officer (after the officer has already remedied his non-compliance) is attributable to the defense. State v. McGee, ___ Or App ____ (Feb. 27, 2013).

Merger—Animal Abuse 1 and Aggravated Animal Abuse 1—Preservation

A reasonable dispute exists as to whether Animal Abuse I (“cruelly causing the death of”) and Aggravated Animal Abuse I (“maliciously killing”) involve the same elements. The state argued that “cruelly” refers to manner of death, whereas “maliciously” refers to the actor’s intent in causing death. The court finds that failure to merge the two is not plain error (i.e., they will not reverse in the absence of the argument being preserved). State v. Pinard, ___ Or App ___ (Feb. 27, 2013).

Merger—Same Statutory Provision—Animal Abuse 1

There is no reasonable dispute that multiple convictions for Animal Abuse I, involving the death of the same animal shot with the same arrow, merge. The court finds that it was plain error not to merge two such counts. State v. Pinard, ___ Or App ___ (Feb. 27, 2013).

Stop—PC—A Car’s Cracked Windshield Does Not “Endanger” Others To violate ORS 815.020 (operation of unsafe vehicle), the condition of the defendant’s car must expose someone to “a danger of probable harm or loss” – the mere possibility of harm or loss is not enough. Here, it was not “objectively reasonable” for an officer to believe the defendant violated 815.020 where there was a horizontal crack in defendant’s windshield. Thus, the officer lacked probable cause for a stop. State v. Stookey, ___ Or App ___ (Feb. 27, 2013).

Limited PCR Remand Does Not Preclude Petitioner From Amending His Petition

Where a PCR case is remanded, the PCR case reverts to a pretrial posture, allowing the petitioner to seek leave to amend his petition. Here, the Court of Appeals had remanded only the claims related to improperly denied subpoenas. However, the narrow remand still allowed petitioner to amend his petition to add new claims if the newly allowed subpoenas uncovered new evidence. Tracy v. Nooth, ___ Or App ____ (Feb. 27, 2013).

PER CURIUM OPINIONS

• Extending Restitution Deadline Requires “Good Cause”—Under ORS 137.106(1)(b), the trial court is required to make a “good cause” determination before extending the statutory deadline for making a restitution award. State v. Griffin, ___ Or App ___ (Feb. 27, 2013) (per curium).
• Contempt is Not a “Conviction”—Here, the trial court entered a judgment stating defendant was “convicted” of contempt for violating a restraining order. The court reversed and remanded for the trial court to make clear that defendant was “found in contempt of court.” State v. J.L.J. /Jung, ___ Or App ___ (Feb. 27, 2013) (per curium).
• UUV and PSV Merge -- Unauthorized use of a vehicle (UUV) and possession of a stolen motor vehicle (PSV) should be merged into a single conviction, because all the elements of PSV are subsumed into the elements of UUV. ORS 138.222(5). State v. Dudley, ___ Or App ___ (Feb. 27, 2013) (per curium).