- Court: Oregon Court of Appeals
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 11-15-2017
- Case #: A160525
- Judge(s)/Court Below: Ortega, P.J., for the Court; Garrett, J.; & Powers, J.
- Full Text Opinion
Petitioner appealed a post-conviction judgment that revoked his probation and was amended to allow for Alternative Incarceration Programs (AIP). Petitioner assigned error to the grant of AIP because AIP is not allowed for his underlying crime, second-degree robbery. Petitioner argued that because AIP is not permitted, the relief given did not mitigated the prejudice he suffered and as a result, requested the Court to vacate the underlying conviction. Defendant, Superintendent, conceded that the post-conviction court erred, but argued that there was “proper and just” relief for Petitioner without vacating his convictions. Under ORS 138.520, the post-conviction court has expansive authority to grant relief that is “proper and just” in order to cure any prejudice a criminal defendant has suffered. Hinton v. Hill, 342 Or 222, 149 P3d 1205 (2006). The Court of Appeals agreed with Superintendent and held the appropriate relief is to remand the case to the post-conviction court to determine a “remedy that cures petitioner’s actual prejudice.” Reversed and remanded with instructions to the post-conviction court to grant relief on claims 3, 5, and 6; otherwise affirmed.