Cox v. Persson

When a case is remanded to retry a particular issue, the lower court has discretionary authority to reopen the record unless stated otherwise.

Cox appealed the post-conviction court’s denial of Cox’s request to reopen the record to submit additional evidence, and assigned error to its interpretation of the scope of remand. On appeal, Cox argued that this Court in Allen v. Premo clearly articulated the scope of “reversed and remanded” as a negation of the judgment Cox appealed and a direction for the lower court to revisit the issue “as though the original proceeding did not occur.” 251 Or App 682, 686 (2012). Cox contends that, under Allen, she was permitted to offer “admissible evidence, such as her testimony.” In response, Persson argued that the case was exempted from Allen because it was not remanded to its “pretrial posture,” but was a partial remand to address prejudice.

When a case is remanded to retry a particular issue, the lower court generally has “the discretionary authority to reopen the record.” Thus, the Court held that the lower court erred when it determined it was precluded from reopening the record to take additional evidence from Cox because, unless stated otherwise, the court has discretion to make those decisions. Vacated and remanded for the post-conviction court to make a discretionary decision whether to permit the expansion of the record and determine the issue of prejudice or to decline and reinstate the judgment.