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State v. Moss

Summarized by: 

Date Filed: 06-07-2012
Case #: S058860
Landau, J. for the Court; En Banc; Durham, J., dissenting; De Muniz and Walters, JJ., joined.
Full Text Opinion: http://courts.oregon.gov/Publications/S058860.pdf

Appellate Procedure: For purposes of ORAP 8.05(3), the word "surrender" means a voluntary act, not an act in response to force or compulsion.

After conviction at the trial level, Defendant appealed. During the pendency of his appeal, he did not comply with the terms of his conviction. The State filed for dismissal of appeal. Subsequently, a bench warrant was issued and Defendant was arrested. Defendant argues that his return to custody constituted a “surrender” within the meaning of ORAP 8.05(3); therefore, preserving his right to appeal. The State argues the word “surrender” means a discretionary act, not due to compulsion. The Court of Appeals dismissed the appeal; ruling that only a voluntary surrender will suffice to preclude dismissal. The issue for the Supreme Court was to interpret the word "surrender" for purposes of ORAP 8.05(3). ORAP 8.05(3), provides that when a defendant, on appeal, absconds, the respondent may motion for dismissal of the appeal. However, if the appellant surrenders before the motion is decided, the motion to dismiss appeal is precluded. The Supreme Court agreed, reasoning that it is illogical to regard a "surrender" compelled by force as sufficient to undo preclusion of dismissal. Affirmed.