Allen v. Premo

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Appellate Procedure
  • Date Filed: 08-15-2012
  • Case #: A145367
  • Judge(s)/Court Below: Schuman, P.J. for the Court: and Haselton, C.J.
  • Full Text Opinion

Where the Court of Appeals issues a decision of remand, the lower court shall act as if the original proceedings did not occur and a new trial has been ordered.

Earl Allen III (Allen) appealed the post-conviction court’s denial of his motion for leave to file a fourth amended petition. In his appeal, Allen contends that the court erroneously believed that it was precluded from exercising discretion in deciding his motion. The post-conviction court based its decision on a remanded decision by the Court of Appeals, which involved the same parties, and held that the trial court was in error in denying Allen’s request to make a statement or testify as to his third amended petition. The Court of Appeals found that the post-conviction court’s decision to deny Allen’s motion was based on a substantive legal conclusion, which exceeded the scope of the post-conviction court’s authority in light of the remand and therefore should be reviewed for errors of law. The Court held that when it remands a decision, the lower tribunal it should act as though the original proceedings did not occur and a new trial ordered. Reversed and remanded.

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