Oregon Court of Appeals 09-29-10
by: Abassos • September 28, 2010 • no comments
Read the full article for details about the following new cases:
- PCR - Late Filing Escape Clause
- Search - Mere Inquiry
- Merger - Forgery
- Speedy Trial
- Sentencing on Remand
- Search - Automobile Exception
- Lesser Includeds - Violations
- Search and Seizure - Consent to Search
- Search Warrant - Surgical Procedure
Contents |
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PCR - Late Filing - Escape Clause===
The escape clause in ORS 138.510(3) of the post-conviction relief statute that allows a petition to be filed after the two year deadline is for grounds of relief that could not be reasonably anticipated. It is not for defendants who could not be reasonably anticipated to timely file. Here, a mentally ill defendant does not qualify for the exception even if the illness prevented the timely filing. Fisher v. Belleque
Search - Mere Inquiry
After the stop ended and defendant, per his own testimony, actually felt free to leave, the officer's return to the vehicle after a few seconds to request consent to search was a mere inquiry which did not violate the constitution. There are lots of ways to distinguish your case from this case:
The facts in this case stand in marked contrast to those of Rodgers/Kirkeby. Cima returned defendant's documents to him, gave him a written warning, and walked away. At that point defendant himself conceded that he felt "100 percent" free to leave the scene. When Cima turned around and returned to defendant's vehicle, no other officer was present. There was no physical restraint on defendant, and nothing blocked his van. The patrol car's overhead emergency lights were not activated. It was only at that point that Cima asked for consent to search. By the time that Cima asked for consent to search, then, the stop had ended, and the request itself constituted a mere inquiry of the sort that the court in Rodgers/Kirkeby held does not implicate the constraints of Article I, section 9.
Merger - Forgery
Merger is required when a person is in possession of multiple forged instruments during a single incident. Here, defendant was in possession of multiple resident alien cards. All 3 three counts merge into one conviction. See also State v. Merrick. State v. Salvador
Speedy Trial
An unconsented delay of 11.5 months on a misdemeanor violates statutory speedy trial rights even though the case was a misdemeanor that was tracking with a felony and then got lost in the system for 8 months. Reversed. ORS 135.747. State v. Ton
Sentencing on Remand
A remand for sentencing is a resentencing. Which means that defendant is allowed to make new sentencing arguments such as whether the M11 sentence is unconstitutionally harsh under Rodriguez/Buck. State v. Claborn
Search - Automobile Exception
A vehicle is mobile for purposes of the automobile exception to the search warrant if it is operable. Here, defendant's girlfriend was in control of the car when she was in a restaurant, after defendant was arrested. The car was not being impounded and it was not impeded from movement in any way. Thus, when PC developed from a discussion with girlfiriend, the automobile exception applied. State v. Kurokawa-Lasciak
Lesser Includeds - Violations
Violations cannot be submitted to a jury in a criminal trial as a lesser included. State v. Swanson
Consent to Search
Defendant consented to let officers into his house to search a computer, and he then consented to the search of another computer, and then another computer, and then a duffel bag next to the bed, and then a case under the bed, and then under his mattresses, etc.. Because at each stage defendant's consent was voluntary and did not result from any illegality, it was constitutional. The trial court found that officers can't keep asking for consent to search until they find something. It turns out they can. State v. Zamora
Search Warrant - Surgical Procedure
A search warrant impliedly authorizes a surgical procedure to remove a bullet from a person where it authorizes officers to seize bullets from the person. There is no requirement that a warrant must specifically authorize surgery. This case is terrifying. It's a good thing the bullet wasn't lodged in a vital organ. State v. Everett
