State v. Landahl
254 Or. App. 46
Or. Ct. App.2012Background
- Defendant petitioned to enter diversion for DUII and pled no contest under the diversion program.
- Diversion allowed dismissal with prejudice if fully compliant; failure to comply could lead to a conviction.
- Court extended diversion for treatment; defense later moved to terminate diversion after completion.
- State discovered a DUII incident dated August 17, 2007, before motion to terminate diversion was filed.
- Court dismissed the DUII charge in September 2007, then vacated that dismissal in November 2007 based on alleged misrepresentation.
- Defendant moved to set aside the November 2007 order many years later; trial court denied and entered a conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is cognizable under ORS 138.050 | State | Brewer | Appeal not cognizable |
| Whether a conviction is a disposition subject to ORS 138.050 review | Defendant argues conviction is a disposition subject to review | Defendant contends the conviction could be reviewed under ORS 138.050 as a disposition that exceeds the maximum | Conviction is not a disposition under ORS 138.050 |
| Whether Cloutier controls the scope of review for pleas entered to divert programs | State relies on Cloutier to limit review to dispositions tied to sentencing | Brewer argues broader review of the conviction is permissible | Cloutier governs; conviction cannot be challenged under ORS 138.050 |
| Whether the November 2007 order vacating the dismissal was reviewable | State raised issue of error in the proceeding leading to vacatur | Brewer contends the underlying conviction should be dismissed | Not reviewable under ORS 138.050; appeal dismissed |
Key Cases Cited
- State v. Cloutier, 351 Or 68 (2011) (disposition defined; plea-based challenges cannot challenge conviction under ORS 138.050)
- State v. Jairl, 229 Or 533 (1962) (limits on review of conviction after plea)
- State v. Clevenger, 297 Or 234 (1984) (plea-based challenge to lawfulness of conviction not cognizable)
- State v. Carmickle, 307 Or 1 (1988) (probation as a sentencing decision; relevance to ORS 138.050 history)
- State v. Gaines, 346 Or 160 (2009) (textual and historical approach to ORS 138.050 in context)