Oregon Appellate Ct - Dec. 31, 2014

Revision as of 13:15, January 3, 2015

DOC Rules Allowing Them to Impose and Take Restitution for Major Violations are Facially Constitutional

It is not unconstitutional for the DOC to have rules that allow for a hearings officer to impose restitution for a major violation and for the restitution to be taken from the inmate's trust account. The rules do not facially violate Due Process because they allow for a hearing and a right to be heard. The rules do not exceed the authority of the DOC because they are disciplinary rules enacted in accordance with statutory authority. Hall v DOC, 268 Or App ___ (2014)

Merger - Felon in Possession - Constructive Possession is Continuing Possession

Where defendant, a felon, took a gun, put it in his trunk and retrieved it the next day after driving to a different location, he only committed one act of Felon in Possession of a Firearm. While it's true that the gun was out of defendant's physical control while it was in his trunk, it was still in his constructive possession since he was exercising dominion and control over it. That is, he had continuous possession of the gun from the time he took it to the time he retrieved it the next day. Thus, the two separate counts of Felon in Possession (one for each day) were required to merge. There was no "sufficient pause" between acts because there was only one act of possession. State v Nunes, 268 Or App ___ (2014)

Felony DUII - 90 Day Minimum is Mandatory

A trial court is not permitted to suspend execution of, or reduce in any way, the 90 day mandatory minimum sentence for felony DUII under ORS 813.011. In reference to the 90 days, ORS 813.011(3) uses the language "shall be sentenced", "mandatory minimum term" and "without reduction for any reason". The legislative history of 2010 Measure 73 confirms the plain language of the statute by indicating that the measure would cause "at least 90 days" to be imposed for a felony DUII. Note, however, that the court does not consider an argument proposed by OPDS in an amicus brief that ORS 813.011(3) is unconstitutional because it was enacted in violation of the single subject rule. (see fn 1). Note also that a defendant sentenced State v Urie, 268 Or App ___ (2014).

Pro Se Defendant’s Right to Representation – Involuntary Absence – Removal for Misconduct

Under the federal constitution, a pro se defendant who is removed from court for his or her disruptive behavior has not automatically forfeited his or her right to representation because the defendant is considered to be “involuntarily absent” from trial. When a defendant is “involuntarily absent”, the court cannot resume trial in the defendant’s absence until "the trial court has either secured the defendant’s waiver of his right to representation at trial or has taken some other course of action that protects the defendant’s right to representation, which may include the appointment of counsel." State v. Menefee, 268 Or App ___ (2014).