State v. Lazarides

When moving to dismiss an appeal of a criminal conviction, under ORAP 8.05(3), the state is required to show that the defendant had absconded from post-prison supervision prior to the ruling, and that the defendant was under "abscond status" at the time of the ruling.

Defendant was convicted of assaulting a public safety officer and sentenced to 12 months’ imprisonment and 24 months’ post-prison supervision (PPS). By the time Defendant was released on PPS, he appealed his conviction. While the appeal was pending, Defendant absconded from PPS. The State moved to dismiss his appeal, and shortly thereafter Defendant was arrested and assigned a 15-day sanction for violating his PPS. The Appellate Commissioner (AC) granted the State’s motion to dismiss on February 25th, on the grounds that the State showed that Defendant had been arrested and thus violated his PPS. Defendant sought reconsideration under ORAP 8.05(3), which only allows for dismissal of an appeal if the appellant is on abscond status at the time the court decides the motion; Defendant argued that he was no longer on abscond status when the decision was made. The state argued that Defendant had absconded by failing to report to his probation officer the day before the AC dismissed Defendant’s appeal. The Oregon Court of Appeals found that Defendant had absconded from PPS before the AC dismissed the appeal and affirmed the trial court’s judgment. Defendant appealed to the Oregon Supreme Court, arguing, among other arguments, that the State failed to show that Defendant was on “abscond status” on February 25th. The Court held that the State failed to show that Defendant was on “abscond status” at the time the Court of Appeals dismissed Defendant’s appeal. Judgment reversed and remanded.