State v. Flores

According to ORS 138.035(3), a probation violation judgment is not appealable.

Defendant appealed a conviction of DUII after having plead guilty in order to receive a diversion. The diversion was revoked and Defendant was sentenced to 36 months of probation with several stipulations that restricted future alcohol and drug use. Defendant appealed the probation conditions and the Court dismissed as moot. Defendant sought reconsideration of the dismissal of his appeal and challenged the conditions of probation. Defendant argued that the dismissal of his appeal was an error because the appeal was not moot and the subsequent judgement was not appealable. Further, Defendant argued that the subsequent judgment was not appealable and that the subsequent judgment did not “reimpose” the challenged conditions, rather the judgment merely extended the conditions. According to ORS 138.035(3), a probation violation judgment is not appealable. The Court held that Defendant’s challenge to the original judgment which imposed probation conditions was not moot under State v. Bates, 315 Or App 402, 414 (2021) because the subsequent judgment was a mere extension of the original conditions and the Court could reverse the conditions under the original judgment.The Court reasoned that all of the conditions related to drug use, possession and association were unrelated to the crime and overly restrictive. Reconsideration allowed; former disposition with-drawn; reversed and remanded for resentencing; otherwise affirmed.