- Court: Oregon Court of Appeals
- Area(s) of Law: Appellate Procedure
- Date Filed: 09-10-2015
- Case #: A152528
- Judge(s)/Court Below: Tookey, J., for the Court; Nakamoto, P.J.; and De Muniz, S.J.
- Full Text Opinion
Defendant convicted of second-degree kidnapping and sentenced to probation. While on probation, Defendant was found with a knife and marijuana. The state moved for a show cause hearing; at the hearing, the court found that Defendant had violated his probation, and revoked his probation. After making this judgment, the court “had second thoughts” and wrote “VACATE” on the judgment. Another hearing was held concerning the trial court’s ability to vacate its judgment; at this hearing, the vacated judgment was withdrawn. In an amended judgment, Defendant’s sentence was changed from probation to imprisonment. Defendant appealed the amended judgment, claiming that the trial court plainly erred when it vacated its decision to revoke Defendant’s probation. Defendant contended that the trial court’s error was subject to plain error review because the trial court’s ability to vacate its own judgment was a question of law, and because “the lack of record regarding whether the judgment had been executed” was “apparent.” The Oregon Court of Appeals found that Defendant’s claim of error was related to the court’s failure to make factual findings to determine if it had the authority to vacate its own judgment. The Court held that the claimed error was not “obvious” as defined under Gornick standards, and therefore did not meet the standards of plain error review. AFFIRMED.