- Court: Oregon Court of Appeals
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 04-03-2019
- Case #: A156063
- Judge(s)/Court Below: Ortega, J. for the Court; Tookey, P.J.; & Egan, C.J.;
- Full Text Opinion
On remand from the Oregon Supreme Court, Petitioner argued that the post-conviction court erred in dismissing his petition with prejudice without first holding a hearing as mandated by ORS 138.525(4). On appeal, Petitioner argued that although he did not preserve his claim of error, the preservation was not required because "the error itself occurred through petitioner's absence." Additionally, Petitioner argued that because the error was "plain" the Court should exercise its discretion to correct it. In response, Defendant argued because Petitioner was on notice of Defendant's request for dismissal, Petitioner was required to preserve his claim of error at that time but failed to do so. Pursuant to ORS 138.525(4), “[a] dismissal is without prejudice if a meritless petition is dismissed without a hearing and the petitioner was not represented by counsel.” On remand, the Court determined that the post-conviction court erred in dismissing Petitioner's claim because the post-conviction court has the option to dismiss without prejudice or to hold a hearing on the merits if it intends to dismiss the action with prejudice.
Judgment reversed and remanded.