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State v. Burns

Court of Appeals of Oregon

February 12, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
STEPHEN MICHAEL BURNS, Defendant-Appellant

Marion County Circuit Court. 10C44374. Dennis J. Graves, Judge. On respondent's motion to dismiss filed December 12, 2013; and on respondent's petition for reconsideration filed December 12, 2013. Opinion filed November 14, 2013. 259 Or.App. 410, 314 P.3d 288.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, for respondent's motion to dismiss and respondent's petition for reconsideration.

Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Edmonds, Senior Judge.

OPINION

Page 276

[261 Or.App. 114] PER CURIAM

On November 14, 2013, we issued an opinion in which we concluded that the trial court sentenced defendant based on an erroneously inflated criminal history score for one of his convictions, and we reversed and remanded for resentencing. State v. Burns, 259 Or.App. 410, 430, 314 P.3d 288 (2013). We rejected the state's argument that the appeal was not ripe, noting that the error would adversely affect defendant should he be subject to revocation of his probation and that his appeal was his sole opportunity to assign error to the criminal history score. Id. at 419. After the decision, but before the appellate judgment in this case issued, defendant successfully completed his term of probation.

The state now moves to dismiss the appeal and petitions for reconsideration. In its motion to dismiss, the state argues that the trial court's use of an erroneous criminal history score to sentence defendant on one of the convictions no longer has a practical effect on defendant's rights and, therefore, the appeal has become moot. We agree that any further action on appeal would have no practical effect on defendant now that he has completed his probation, and we grant the motion and dismiss the appeal because it is now moot.

Simultaneously, the state filed a motion for relief from default and extension of time to file a petition for reconsideration in which the state proposed to again argue that the appeal is moot. The state explained that its time for filing a petition lapsed because it did not intend to seek reconsideration and instead, while preparing a petition for review in the Supreme Court, discovered that defendant had completed probation. We allowed the late filing of the petition for reconsideration. However, we now deny the state's petition as moot in light of the granting of the state's motion to dismiss and our consequent dismissal of the appeal.

Motion to dismiss appeal granted and petition for reconsideration denied. Appeal dismissed as moot.


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