Dеfendant appeals from an order denying his motion to set aside a conviction. ORS 137.225.
Defendant was convicted of criminally negligent homicide, ORS 163.145, and рlaced on three years’ probation. Near the end of that period, he was cited for violating the probation condition that required him to obey all laws. The state moved to revoke his probation, and he moved to have his conviction set aside.
At the hearing on both motions, the court fоund that defendant had violated the law.
After defendant had completed his extended probation, he again moved to have his conviction set aside. At the hearing on that motion, the court found that the previous judgment prevented him from relitigating the issues determined in that proceeding. Because of the previous finding that defendant had violated the law, the court ruled that he was precluded from relitigating that issue and was, therefore, not entitled to have his conviction set aside.
Under ORS 137.225(3), a court may deny a motion to set aside а conviction if it finds, by a preponderance of the evidence, that, after the date of that conviction, the defendant committed another offense, other than a motor vehicle code violation. State v. Langan,
The doctrine of claim preclusion, historically known as res judicata, is that, in the absence of a particular exception, a party who has litigated a claim is barred from asserting in а later action involving the same parties any claim based on the same factual transaction that gave rise to the previous claim. Drews v. EBI Companies,
The doctrine of issue preclusion, historically known as collateral estoppel, is that, again in the absence of a particular exception, a party is barred from relitigating any issue that was actually litigated and determined in a previous proceeding, if that determination was essential to the judgment. Drews v. EBI Companies, supra,
The Supreme Court recognized that principle in Gentry v. Pacific Livestock Co.,
Subsequently, Gentry brought an action against Pacific to recover damages for the hay that Pacific had used while he was temporarily enjoined from interfering with Pacific’s use of the properly. In that action, the trial court held that the previous appellate court judgment estopped Pаcific from denying Gentry’s title to the hay. On appeal from that decision, the court disagreed. It held:
“In an action between the same parties upon a different claim or demand, [an appellate court judgment] * * * can operate as a bar or estoppel only as to matters in issue and which were actually litigated and determined.” Gentry v. Pacific Livestock Co., supra, 45 Or at 237.
Because the
Similarly, our earlier decision expressly did not resolve the issue of whether defendant had violated ORS 475.185. Therefore, defendant is entitled to a hearing and a determination on that issue.
Reversed and remanded.
Notes
ORS 137.225 provides, in part:
“(l)(a) At any time after the lapse of three years from the date of pronouncement of judgment, any defendant who has fully complied with and performed the sentence of the court * * * by motion may apply to the court wherein that conviction was entered for entiy of an order setting aside the conviction; or
“ * * * *
“(3) Upon hearing the motion, the court may require the filing of such affidavits and may require the tаking of such proofs as it deems proper. If the court determines that the circumstances and behavior of the applicant from the date of conviction * * * to the date of the hearing on the motion warrant setting aside the conviction, * * * it shall enter an appropriate order * *
The court found that defendant, a licensed medical doctor, had violated ORS 475.185 by dispensing a controlled substance to himself.
Because of the basis for our disposition, we need not decide, and no one argues, whether preclusion doctrines can be applied against a defendant in a criminal proceeding.
That comment reads:
“In some cases, a judgment does not preclude relitigation of all or part of the claim on which the action is brought. * * * In such cases, the rule of this Section precludes relitigation of issues actually litigatеd and determined in the first action when a second action is brought on the same claim.”
Section 27 provides:
“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”
Although they have not been expressly adopted as the law of Oregon, the Restatement rules and comments that we cite are persuasive.
The comment reads, in relevant part:
“If the judgment of the court of first instance was based on a determination of two issues, either of which standing independently would be sufficient to support the result, and the appellate court upholds * * * one of these determinations as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is cоnclusive as to the first determination.”
In Dow Chemical v. U.S. E.P.A., 832 F2d 319, 323 (5th Cir 1987), the court quoted the rule from 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4421 (1981:
“The federal decisions agree that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision.”