Oregon Appellate Ct - Sept. 2, 2015
by: Abassos, Cmaloney and Alarson • September 3, 2015 • no comments
Plea Agreements – A Judge Cannot Reject a Plea Agreement Based Solely On a Court Policy
Before deciding to accept or reject a plea agreement the court is statutorily required to give “due consideration” to the agreement. This requires a judge to consider the particular plea agreement reached between the parties. Accordingly, a judge cannot categorically reject a plea agreement on the basis that it is against a court policy. Here, the prosecutor agreed to seek a dismissal of a Theft 3 in exchange for a plea to attempted theft III. The judge rejected the plea agreement based solely on the court’s policy of not permitting defendants charged with misdemeanors to plead guilty to violations. Defendant argued that the judge cannot properly exercise discretion in rejecting a plea agreement without giving it “due consideration.” Here, the judge failed to properly exercise his discretion because he did not consider the particular plea agreement before deciding whether to accept or reject it. Reversed and remanded. State v. Justice, 273 Or App 457 (2015).
Jury Instructions – Unlawful Possession of Firearm – An Instruction That a ‘Firearm Carried in a Holster is Not Concealed’ is Proper Where Defendant Presents Such Evidence
A defendant is generally entitled to a jury instruction if there is evidence to support it and the proposed instruction accurately states the law. Here, the defendant was charged with unlawful possession of a firearm. At trial, the defendant—in his case-in-chief—presented evidence that the gun was carried openly in a belt holster. The defendant requested that the jury be instructed that the state must prove beyond a reasonable doubt that the gun was not carried openly in a holster. Firearms carried openly in belt holsters are not concealed within the meaning of the unlawful possession of a firearm statute - ORS 166.250(3). Because the instruction accurately stated the law, properly allocated the burden to the state, and set forth the facts that a jury must find, it was error to deny the defendant the instruction. State v. Abram, 273 Or App 449 (2015).
