Oregon Appellate Court - February 27, 2013

by: Jevans and Abassos • February 27, 2013 • no comments

With Joseph Westover and Xiaoxi Cheng

Limited Remand Does Not Preclude Pretrial Motions in PCR Case
Where a PCR case is remanded, the PCR case reverts to a pretrial posture, allowing the petitioner to seek leave to amend his petition. In a prior case, the Court of Appeal remanded only the claims related to improperly denied subpoenas. Here, the Court clarifies that this narrow remand did not preclude the petitioner seeking to amend his petition to add new claims if the subpoenas uncovered new evidence. Tracy v. Nooth, ___ Or App ____ (Feb. 27, 2013).

If the State Takes Your Weed, They Ain’t Giving it Back . . . Ever.
Where a case is dismissed without prejudice, the Court cannot order the State to return seized Marijuana under the Oregon Medical Marijuana Act, ORS 475.323(2), or the omnibus evidence return provision, ORS 133.643.

• The OMMA only requires the return of marijuana where the District Attorney determines that the owner is entitled to possess it (though an acquittal or failure to prosecute may “evidence” this determination).
• ORS 133.643 only authorizes the return of “lawfully” owned items, which means that possession of the property must not be illegal under either federal or state law.

State v. Ehrensing, ___ Or App ____ (Feb. 27, 2013).

Speedy Trial – 190 days is Not Unreasonable Delay
Recounting the 835-day saga of a misdemeanor DUII case, the appellate court reverses the trial court’s speedy trial dismissal, finding that only 190 days of delay were attributable to the State. Among its many rulings, the court holds that:

• Time spent pursuing contempt charges against a police officer (after the officer had already remedied his non-compliance) was attributable to the defense.
• Defense motions requiring pretrial resolution were attributable to the defense.
• Set over due to defense attorney’s surgery was attributable to the defense.

State v. McGee'', ___ Or App ____ (Feb. 27, 2013).

Merger—Animal Abuse 1 and Aggravated Animal Abuse 1
A reasonable dispute exists as to whether Animal Abuse I (“cruelly causing the death of”) and Aggravated Animal Abuse I (“maliciously killing”) involve the same elements. State asserts that “cruelly” refers to manner of death, whereas “maliciously” refers to the actor’s intent in causing death. The court finds that failure to merge the two is not plain error. State v. Pinard, ___ Or App ___ (Feb. 27, 2013).

Merger—Same Statutory Provision—Animal Abuse 1
There is no reasonable dispute that multiple convictions for Animal Abuse I, involving the death of the same animal shot with the same arrow, merge. The court finds that it was plain error not to merge two counts. State v. Pinard, ___ Or App ___ (Feb. 27, 2013).

A Car’s Cracked Windshield Does Not “Endanger” Others
To violate ORS 815.020 (operation of unsafe vehicle), the condition of the defendant’s car must expose someone to “a danger of probable harm or loss” – the mere possibility of harm or risk is not enough. Here, it was not “objectively reasonable” for an officer to believe the defendant violated 815.020 because there was a horizontal crack in defendant’s windshield; therefore, the officer lacked probable cause for a stop. State v. Stookey, ___ Or App ___ (Feb. 27, 2013).

PER CURIUM OPINIONS

• Extending Restitution Deadline Requires “Good Cause” -- Under ORS 137.106(1)(b), the trial court is required to make a “good cause” determination before extending the statutory deadline for making a restitution award. State v. Griffin, ___ Or App ___ (Feb. 27, 2013) (per curium).
• Contempt is Not Considered a “Conviction” -- Here, the trial court entered a judgment stating defendant was “convicted” of contempt for violating a restraining order. The court reversed and remanded for the trial court to make clear that defendant was “found in contempt of court.” State v. J.L.J. /Jung, ___ Or App ___ (Feb. 27, 2013) (per curium).
• UUV and PSV Merge -- Unauthorized use of a vehicle (UUV) and possession of a stolen motor vehicle (PSV) should be merged into a single conviction, because all the elements of PSV are subsumed into the elements of UUV. ORS 138.222(5). State v. Dudley, ___ Or App ___ (Feb. 27, 2013) (per curium).