Oregon Appellate Ct - Jan. 21, 2016

by: Abassos • January 21, 2016 • no comments

Probation Condition - Overbreadth - Ban On Spending More Than $250.00 Without Permission Is Not Overbroad and Is Reasonably Related to Gambling/Theft

A spending restriction is not overbroad in a embezzlement case involving deception and misconduct and is reasonably related to the gambling addiction that caused defendant to steal from her employer. Here, defendant was prohibited from spending more than $250.00 without permission from the probation officer, unless the money was for household expenses. Because the crimes occurred as a result of insufficient oversight combined with a gambling addiction that defendant could not control, the oversight of defendant's spending was not more restrictive than it needed to be to assure her continued compliance with probation.

A further discussion of the underlying facts is not necessary to summarize the holding of this case, but the facts may still be of some interest to defense attorneys:

"Defendant worked as an evidence technician with the Oregon State Police (OSP) for several years, which gave her access to evidence facilities in Newport, Tillamook, and McMinnville. At some point, defendant began taking money from OSP evidence lockers to sustain a gambling addiction, a practice that she carried on for well over a year. Defendant sometimes transferred money from one evidence facility to another to cover for the money she had taken. Eventually, she was asked to remove cash from specific evidence lockers for disbursement in several criminal cases. Unable to comply with the request, she instead attempted to cover up her theft by staging a burglary at the evidence facility."

State v Bell, 276 Or App 21 (2016).

Probation Condition - Overbreadth - Ban on Traveling Outside County of Residence Overbroad and Not Reasonably Related to Theft/Misconduct/Tampering

Defendant's probation condition prohibiting her from leaving the county was overbroad. The judge's reasoning for imposing the condition in a theft case was that any money that would be spent on travel should instead by used to pay restitution. However, the geographic restriction is more burdensome than necessary to achieve the goal of paying back restitution. Moreover, there is no nexus between the ban on travel and the crimes of theft and tampering with evidence, since the trial court essentially admitted in saying that the condition was imposed to assist in the payment of restitution. State v Bell, 276 Or App 21 (2016).

Probation Condition - Overbreadth - Ban on Traveling Into County of Crime Is Overbroad in a Stalking Case

Defendant's probation condition for violation of a stalking order was overbroad in prohibiting her from being in Lincoln County north of Cape Foulweather. The geographic limitation is rendered superfluous by a separate no-contact provision. And the condition prohibits her from using the only major north-south road through the county and from going to popular areas unrelated to the crime, including Lincoln City and Depoe Bay. As such, the condition is overbroad. State v Hurita, 276 Or App 58 (2016).

Habeas Petition Challenging Administrative Segregation Must Allege Facts Supporting a Constitutionally Inadequate Process

Where an inmate challenges his detention outside of general population for lack of 14th amendment due process, the inmate must allege facts demonstrating that (a) the detention imposes a significant hardship atypical of normal prison conditions and (b) the procedure for challenging the detention was constitutionally inadequate. Here, the inmate alleged that he was placed in administrative segregation for filing a report of assault by a guard. But the habeas petition failed to allege anything about the actual process that would support a conclusion that it was inadequate. Thus, the petition was properly dismissed. Foust v Nooth, 276 Or App 38 (2016).