- Court: Oregon Supreme Court
- Area(s) of Law: Criminal Law
- Date Filed: 02-27-2019
- Case #: S065089
- Judge(s)/Court Below: Nelson, J. for the Court; Walters, C.J.; Balmer, J.; Nakamoto, J.; Flynn, J.; Duncan, J.; & Kistler, S.J. pro tempore.
- Full Text Opinion
Defendant appealed her judgment of conviction of failure to appear in the second-degree. Defendant assigned error to the trial court’s denial of Defendant’s motion of acquittal. Defendant argued that the State had not proven that Defendant had been released from custody by court order before she failed to appear under ORS 162.195(1)(a). The State argued that the requirement was satisfied when the defendant went through a “book-and-release” process and signed the trial court’s arraignment order. “To establish that Defendant had been ‘released from custody’ for purposes of second-degree failure to appear, the state [is] required to prove (1) the imposition of actual or constructive restraint by a peace officer, pursuant to an arrest or court order, amounting to ‘custody,’ ORS 162.135(4); and, then, (2) that Defendant had been released from that custody, by court order, under a release agreement and upon an appearance condition.” State v. McColly, 364 Or 464, 488 (2019). The Court found the State’s reliance on the arraignment order to prove restraint is not sufficient because the statute requires a peace officer, and not the court, to impose the restraint. The Court held that, although the State proved that the Defendant signed an arraignment order and completed a book-and-release process, the State failed to prove that the Defendant was “released from custody” because there was no evidence of a peace officer imposing actual or constructive restraint amounting to custody, from which the court then released the Defendant. Reversed and remanded.