- Court: Oregon Supreme Court
- Area(s) of Law: Appellate Procedure
- Date Filed: 09-20-2012
- Case #: S059925
- Judge(s)/Court Below: Balmer, C.J. for the Court; En Banc.
- Full Text Opinion
This was an original mandamus proceeding in which the criminal defendant was seeking to compel the judge to modify the terms of his security release agreement, which forbids him from having contact with his father. In his mandamus petition, as well as his brief for the Court, the Defendant argued that the trial court had no statutory authority to place the no contact condition in his release agreement, and further, that it was unconstitutional. The Defendant was charged with various sexual offenses that took place between 2001 and 2005, involving Defendant's younger cousin. One of the charges against Defendant was a Measure 11 offense, and any pretrial release was governed by ORS 135.240(5). In ORS 135.240(b), the statute provided that the "Court may impose any supervisory conditions deemed necessary for the protection of the victim and the community." The State recommended, and the trial court accepted, that the Defendant have no contact with his father because his father is a witness in the proceeding, and this is a standard condition in security releases. The Defendant argued in his brief that these conditions are unnecessary because the offenses took place several years prior, and offered evidence to show that he was not a threat to either the victim or community. But, at oral argument, Defendant abandoned this position, and conceded that if there were evidence of a risk than this condition would be appropriate. Defendant then argued that the evidence simply did not support this condition. The Court held that because Defendant made a legal argument not contained in the brief, and conceded that this condition is permissible in some circumstances, the Court exercised their discretion to dismiss the alternative writ.