Summary
The Oregon Supreme Court interpreted ORAP 8.05(3) (2015), which permits dismissal of a criminal appeal when the appellant is on escape or abscond status. The court held that the appellant's status must be determined as of the date the appellate court decides the motion to dismiss and based on the evidence before the court on that date. Because the state failed to prove that Anthony James Lazarides was on abscond status on the relevant date, the dismissal was reversed and the case was remanded for reinstatement of the appeal.
Topics
Practice areas
Questions Presented
- What motion is referred to by the phrase "the motion" in ORAP 8.05(3) (2015)?
- Under ORAP 8.05(3), when must an appellate court determine whether a criminal defendant is on abscond status, and what evidence may it consider?
- Did the State prove that defendant was on abscond status when the Court of Appeals decided the motion to dismiss his appeal?
Holdings
- The phrase "the motion" in ORAP 8.05(3) refers to the respondent's motion to dismiss the criminal appeal.
- For purposes of ORAP 8.05(3), a defendant is on abscond status when the defendant is both engaging in evasive conduct and exhibiting an intent to evade or avoid legal process, including post-prison supervision.
- Under ORAP 8.05(3), an appellate court must determine whether a criminal defendant is on abscond status as of the date it decides the motion to dismiss and based on the evidence before it on that date.
- The State failed to prove that defendant was on abscond status on February 25, 2015, when the Appellate Commissioner decided the motion to dismiss; therefore, the Court of Appeals erred in dismissing the appeal and in denying reconsideration.
Key quotations
“Thus, we hold that, under ORAP 8.05(3), an appellate court determines whether a criminal defendant is on abscond status as of the date it decides the motion and based on the evidence before it on that date.” (739)
“Given the common meaning of “status” and the meaning of “abscond,” explicated in Robbins, we conclude that the term “abscond status” in ORAP 8.05(3) refers to a defendant’s legal condition when that defendant is both engaging in evasive conduct and exhibiting an intent to evade or avoid legal process, including, as relevant to this case, post-prison supervision.” (735)
Factual background
In 2013, defendant was convicted of assaulting a public safety officer and sentenced to incarceration followed by post-prison supervision. After his release, he failed to report as directed, and the Board of Parole and Post-Prison Supervision issued an arrest warrant. He was arrested shortly after the State moved to dismiss his pending criminal appeal, later returned to supervision, and was again detained after additional alleged supervision violations. When the Court of Appeals decided the motion to dismiss, the State had not produced evidence that defendant was then both engaging in evasive conduct and intending to evade supervision.
Procedural history
Defendant was convicted in Malheur County Circuit Court and appealed. While the appeal was pending, the State moved to dismiss under ORAP 8.05(3). The Court of Appeals' Appellate Commissioner dismissed the appeal, and the Court of Appeals denied reconsideration despite defendant's return to custody and the State's submission of additional evidence. The Oregon Supreme Court reversed and remanded for reinstatement of the appeal.
Remand instructions
The Court of Appeals must reinstate defendant's appeal and conduct further proceedings.