Oregon Appellate Ct - Dec. 31, 2014
by: Abassos, Frangieringer and Nicholas Rischiotto • January 2, 2015 • no comments
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).
