State v. Burns

Court of Appeals of Oregon

State v. Burns

323 P.3d 275, 261 Or. App. 113, 2014 WL 562398, 2014 Ore. App. LEXIS 148

CourtCourt of Appeals of Oregon

DecidedFebruary 12, 2014

Docket10C44374; A147455

StatusPublished

Cited by6 cases

This text of 323 P.3d 275 (State v. Burns) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Burns, 323 P.3d 275, 261 Or. App. 113, 2014 WL 562398, 2014 Ore. App. LEXIS 148 (Or. Ct. App. 2014).

Pincite

Opinion

PER CURIAM

On November 14, 2013, we issued an opinion in which we concluded that the trial court sentenced defendant based on an erroneously inflated criminal history score for one of his convictions, and we reversed and remanded for resentencing. State v. Burns, 259 Or App 410, 430, 314 P3d 288 (2013). We rejected the state’s argument that the appeal was not ripe, noting that the error would adversely affect defendant should he be subject to revocation of his probation and that his appeal was his sole opportunity to assign error to the criminal history score. Id. at 419. After the decision, but before the appellate judgment in this case issued, defendant successfully completed his term of probation.

The state now moves to dismiss the appeal and petitions for reconsideration. In its motion to dismiss, the state argues that the trial court’s use of an erroneous criminal history score to sentence defendant on one of the convictions no longer has a practical effect on defendant’s rights and, therefore, the appeal has become moot. We agree that any further action on appeal would have no practical effect on defendant now that he has completed his probation, and we grant the motion and dismiss the appeal because it is now moot.

Simultaneously, the state filed a motion for relief from default and extension of time to file a petition for reconsideration in which the state proposed to again argue that the appeal is moot. The state explained that its time for filing a petition lapsed because it did not intend to seek reconsideration and instead, while preparing a petition for review in the Supreme Court, discovered that defendant had completed probation. We allowed the late filing of the petition for reconsideration. However, we now deny the state’s petition as moot in light of the granting of the state’s motion to dismiss and our consequent dismissal of the appeal.

Motion to dismiss appeal granted and petition for reconsideration denied. Appeal dismissed as moot.

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PER CURIAM

On November 14, 2013, we issued an opinion in which we concluded that the trial court sentenced defendant based on an erroneously inflated criminal history score for one of his convictions, and we reversed and remanded for resentencing. State v. Burns, 259 Or App 410, 430, 314 P3d 288 (2013). We rejected the state’s argument that the appeal was not ripe, noting that the error would adversely affect defendant should he be subject to revocation of his probation and that his appeal was his sole opportunity to assign error to the criminal history score. Id. at 419. After the decision, but before the appellate judgment in this case issued, defendant successfully completed his term of probation.

The state now moves to dismiss the appeal and petitions for reconsideration. In its motion to dismiss, the state argues that the trial court’s use of an erroneous criminal history score to sentence defendant on one of the convictions no longer has a practical effect on defendant’s rights and, therefore, the appeal has become moot. We agree that any further action on appeal would have no practical effect on defendant now that he has completed his probation, and we grant the motion and dismiss the appeal because it is now moot.

Simultaneously, the state filed a motion for relief from default and extension of time to file a petition for reconsideration in which the state proposed to again argue that the appeal is moot. The state explained that its time for filing a petition lapsed because it did not intend to seek reconsideration and instead, while preparing a petition for review in the Supreme Court, discovered that defendant had completed probation. We allowed the late filing of the petition for reconsideration. However, we now deny the state’s petition as moot in light of the granting of the state’s motion to dismiss and our consequent dismissal of the appeal.

Motion to dismiss appeal granted and petition for reconsideration denied. Appeal dismissed as moot.

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Bluebook (online)

323 P.3d 275, 261 Or. App. 113, 2014 WL 562398, 2014 Ore. App. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burns-orctapp-2014.

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