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Oregon: Only Voluntary Surrender Avoids Fugitive Dismissal Rule

In a 4-3 decision, the en banc Oregon Supreme Court held on June 7, 2012 that a defendant’s “surrender” must be voluntary in order to avoid dismissal of a pending appeal under the state’s fugitive dismissal rule.

Pursuant to Oregon Rule of Appellate Procedure (ORAP) 8.05(3), if a criminal defendant “escapes or absconds from custody or supervision” while his or her case is on appeal, the state may move to dismiss. “If the appellant has not surrendered at the time the motion is decided,” the Court of Appeals may grant the motion.

Jesse V. Moss was convicted of several criminal offenses and sentenced to probation and community service in February 2009. He appealed his convictions but on August 17, 2010, while the appeal was pending, “the trial court found that defendant ‘has absconded from probation’ and issued a bench warrant for [his] arrest.”

On August 20, 2010 the state moved to dismiss Moss’ appeal pursuant to ORAP 8.05(3). Two days later, however, Moss was re-arrested. The Court of Appeals rejected his argument that dismissal “was no longer permitted because he had ‘surrendered’ within the meaning of the rule in light of his return to custody.” Moss’ appeal was dismissed, and the en banc Oregon Supreme Court accepted his case for review.

Finding that the meaning of “surrender” in ORAP 8.05(3) governed the outcome of the case, the Court observed that “‘surrender’ has a variety of different ‘ordinary’ meanings.” Some of those definitions supported Moss’ interpretation that any return to custody constitutes “surrender,” while others supported the state’s reading that there is no “surrender” unless a defendant returns to custody voluntarily. The Court then turned to the context within which the rule was adopted to resolve the issue, noting that “the rule is at least ambiguous.”

The Supreme Court observed that before the formal 1993 adoption of the state’s fugitive dismissal rule, Oregon courts “recognized their inherent authority to dismiss a criminal appeal when the defendant absconds.” Under this rule, dismissal is appropriate “because the defendant has waived the right to proceed and ... only a voluntary return will suffice to undo that waiver.”

The Court reasoned that “if absconding amounts to a voluntary waiver or forfeiture of the right to proceed with an appeal under ORAP 8.05(3), it is illogical to regard a ‘surrender’ in the face of compulsion as sufficient to undo that waiver.” Thus, although it was undisputed that Moss was rearrested before his appeal was dismissed, the state Supreme Court found “that does not constitute ‘surrender’ within the meaning of the rule.” The dismissal of Moss’ appeal was therefore affirmed.

Justice Durham, in a lengthy dissent joined by two other Justices, focused on the definition and context of a defendant’s “surrender” and took issue with the fact that the state had presented no evidence that Moss had not surrendered. “After he escaped or absconded from supervision, did defendant surrender to the state’s control? It is clear that nothing in the ordinary meaning of ‘surrender’ precludes a defendant from volitionally choosing to submit to police authority, and thus fully surrender to the police, regardless of whether the police also possess or serve an arrest warrant at some point,” Durham noted. See: State v. Moss, 352 Or. 46, 279 P.3d 200 (Ore. 2012).

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Related legal case

State v. Moss