State v. Shutoff

• Court: Oregon Court of Appeals
• Area(s) of Law: Criminal Procedure
• Date Filed: 06-18-2014
• Case #: A149773
• Judge(s)/Court Below: Sercombe, J. for the Court; Ortega, P.J.; & Hadlock, J.

Under ORS 136.040, a criminal defendant has a right to be present at his trial. This right may be waived, but that requires sufficient evidence to support finding that defendant intentionally relinquished his right.

Defendant was convicted of interfering with a peace officer, a misdemeanor, after a bench trial was held without defendant present. Defendant had waived his right to a jury trial, but not necessarily his right to be present at his bench trial. Defendant’s counsel objected to the court proceeding without defendant, but the trial court ruled a defendant’s presence is not required for a misdemeanor trial. Defendant raised this same objection on appeal. The Court held there was no additional information that supported the conclusion that defendant’s absence was voluntary; evidence that defendant was told of the trial is not sufficient alone to support the conclusion that defendant was voluntarily absent from his criminal trial. Reversed and remanded.

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