Oregon Appellate Court 11-02-11
by: Abassos • November 1, 2011 • no comments
Read the full article for details about the following new cases:
- DUII - Sleep Driving
- Vertical Proportionality - Misdemeanor vs Felony Probation Revocation
- Dependency - Change in Permanency Plan to Guardianship
- Appeal - Supplemental Judgment
- Restitution - Good Cause to Extend Past 90 Days
Contents |
DUII - Sleep Driving
Evidence that the defendant was "sleep driving" was properly excluded because DUII is a strict liability offense. Defendant wanted to present evidence that he left his car at home because he knew he would be drinking. He was dropped off back at home by friends and the next thing he remembers is being pulled over by police. The court says that because there is no mental state requirement, such evidence is irrelevant. I find this case baffling. The court says that defendant raised the voluntary act issue, but then they don't address it. At all. Even if DUII is a strict liability offense, that doesn't dispense with the requirement that there be a voluntary act. And isn't sleep walking the classic non-voluntary act? Just baffling. State v. Newman
Vertical Proportionality - Misdemeanor vs Felony Probation Revocation
The court doesn't address the vertical proportionality issue directly because defendant failed to demonstrate that he would have received a lesser sentence on a felony than he did on a misdemeanor. While it was true, at the time of defendant's probation revocation hearing, that the most he could have received on a presumptive probation revocation was 60 days; the defendant did not establish that he would have been presumptive probation were his misdemeanor a felony. If he was in a presumptive prison grid block then he could have received more on a felony assault than the 6 months imposed on his misdemeanor. Thus, there would be no proportionality problem. State v. Chase
Dependency - Change in Permanency Plan to Guardianship
The court finds that DHS made reasonable efforts and that the change in permanency plan was justified by the risks to the child from the men in mother's life. For example, mother's brother, a registered sex offender, was staying with mother but she lied about it to DHS and she did not have a sufficient safety plan regardless. Ditto with mother's boyfriend who had a history of domestic violence. DHS v. NS
Appeal - Supplemental Judgment
An appeal from a supplemental judgment (here, for restitution) must be made within 30 days of the supplemental judgment. It is not sufficient to rely on an appeal from the original judgment. This is true even where the supplemental judgment for restitution occurs in the normal course without a hearing. State v. White
Restitution - Good Cause to Extend Past 90 Days
With four cases in a single day, perhaps the appellate court is sending the message that they're unlikely to overturn a finding of good cause, made by a trial judge, to have a restitution hearing after the statutory time period of 90 days:
The fact that the victim was sick provided sufficient cause to move the restitution hearing to 98 days from the judgment of conviction. State v. Landreth
The fact that, first, the DA was waiting for information from the victims compensation program and then that the defendant needed new counsel and to be transported, provided sufficient cause to have the restitution hearing approximately 6 months after the judgment of conviction. State v. Martinez
The illness of the "restitution specialist" working on the case provided sufficient cause to hold the restitution hearing outside of the 90 day period. State v. Unis
The difficulty the victim's family had in assembling all the medical bills provided sufficient cause to enter the order of restitution after the 90 days had expired. State v. Condon
