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by: Ryan • April 8, 2012 • no comments

Please permit and excuse a little self-congratulation, even if it's unseemly. Why should you? Well, first of all, it's because I'm congratulating myself on a very, very small thing, and two, even I need the occasional break from doubt and self-criticism.

So, the thing that prompts this self-congratulation is a case that the OSC just granted review of. Is it my appeal? No. Was I the trial attorney? No. Did I in any way advise or help out either the trial or appellate attorney? Nope.

No, the reason I'm pleased with myself is that the issue the OSC granted review of involves . . . wait for it . . . separate criminal episodes. My self-congratulation is limited simply to my belief -- born out by a few cases on which the OSC has granted review -- that at this moment in time, I'm not bad at figuring out what issues deserve review before the Supreme Court. Sex abuse II? Check. Offense-specific enhancement factors? Check. And now a case involving separate criminal episodes. In sum, the three subjects I have harped on the most for the past two years.

You see, I told you it was a small thing I was congratulating myself for.

Anyway, it could be luck, and even if not luck, it's certainly temporary. But if you're a long-time reader of this blog, you know that I think the current case law on separate criminal episodes is A MESS , and there's a need for the OSC to step in any fix it.

Anyway, the new case -- AWOP'd by the Court of Appeals -- has a strange procedural history, but it comes down to whether a PCS from a traffic stop is from the same criminal episode (for the purposes of double jeopady) as a DUII from that same traffic stop.

For the moment, I'm going to gloss over whether the criminal episode analysis is the same for double jeopardy as it is for sentencing and criminal history recalculation. If it's not exactly the same, they almost entirely overlap.

In fact, I'm going to skip the whole analysis entirely. I doubt I have anything new at the moment to add to my previous posts. But I do want to share the last three paragraphs from the post I linked to above, three paragraphs which I hope turn out to be quite prescient:

I suggest, instead, that we invite the Oregon Supreme Court to re-boot the whole analysis, and the analysis they should adopt is the one discussed by Judge Armstrong in his dissent in Sparks. His analysis is perfectly sound. It would eliminate almost all ambiguity. We'd have consistent opinions. And it's not like he pulled the analysis out of his hat. He got it directly from the Oregon Supreme Court in State v. Fitzgerald. (See the previous post for all necessary cites and quotes.)
Of course, it's not enough to wait until a case gets up to the OSC to raise this argument. Even if the trial court and the COA are bound by precedent, you should argue for a re-boot if your client finds herself in the following situation: your clients crimes are tied together by time, place and circumstance, but the court is still likely to find separate criminal episodes under a Sparks-type analysis. Sure, still argue that the court should find one criminal episode under current law, but make the back-up argument that adopts the Fitzgerald analysis/Sparks dissent.
It's happened before: the OSC lays out the law, the COA interprets it for 20 years, ultimately getting farther and farther away from the original interpretation, and the OSC steps back in to set the matter straight. (The Kidnapping case law is the most recent, prominent example.) Give the Court this opportunity to undue the messy, ambiguous status quo.