§ 28.9 Decision by the Court of Appeals

LibraryCriminal Law in Oregon (OSBar) (2022 Ed.)
§ 28.9 DECISION BY THE COURT OF APPEALS

The Oregon legislature has codified the remedies or decisions that an Oregon appellate court can render in disposing of an appeal. "[T]he appellate court may affirm, reverse, vacate or modify the judgment or order, or any part thereof, from which the appeal was taken." ORS 138.257(1).

The appellate court can reverse, vacate, or modify a judgment without remanding the case back to the lower tribunal. But, the appellate court can only reverse, modify, or vacate, if the error is harmful in light of Article VII (Amended) section 3, of the Oregon Constitution. ORS 138.257(2). See § 28.8-2(c) (harmless error).

In a criminal case involving multiple counts and convictions, the appellate court must remand the entire case back to the trial court if it reverses one or more convictions, even if it affirms others. ORS 138.257(4)(a)(A).

The appellate court does not need to give specific instructions to the trial court regarding how to proceed when a case is remanded. ORS 138.257(3). When an appellate court "reverses and remands, [it] assume[s] that the trial court, with the parties' guidance, will follow whatever procedure is appropriate in light of the reason for the remand." State v. Sewell, 225 Or App 296, 297, 201 P3d 918 (2009) (per curiam). In some cases, implicit in an appellate court's decision to reverse and remand is a requirement that the trial court hold a new trial. State v. Hightower, 301 Or App 750, 752, 459 P3d 266 (2020), aff'd, 368 Or 378, 491 P3d 769 (2021) ("we think that implicit in the Supreme Court's decision to reverse and remand is a determination that the trial court's error was not harmless").

If the appellate court reverses a conviction without remanding the case back to the trial court, the trial court must follow "the procedures described in ORS 135.680 (procedure if resubmission of the case is not allowed) concerning the defendant's release." ORS 138.257(5). Pursuant to that provision, if the...

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