Submitted February 6, 2017
County Circuit Court 14CR05367 Carol R. Bispham, Judge.
E. Kennedy and The Morley Thomas Law Firm fled the briefs for
Geordie Duckler fled the brief for respondent.
Duncan, Presiding Judge, and DeVore, Judge, and Garrett,
Summary: The City of Lebanon appeals from the circuit
court's order directing the city to return
defendant's dog after defendant was acquitted of
second-degree animal abuse. In a prior trial, defendant had
been convicted of the charge in the Lebanon Municipal Court.
The municipal court ordered defendant's dog forfeited,
pursuant to ORS 167.350. Defendant appealed the judgment of
conviction to the circuit court, the case was tried anew,
and, ultimately, defendant was acquitted. After
defendant's acquittal, the circuit court ordered the
return of defendant's dog. The city challenges the order,
arguing that the circuit court erred because ORS 167.350
authorized forfeiture and because the municipal court had
denied defendant's request to stay execution of the
sentence pending retrial in the circuit court. Held:
The circuit court did not err in ordering the dog's
return. Although the forfeiture was authorized under ORS
167.350 as part of the sentence in the municipal court,
defendant cannot continue to be subject to a punitive
sanction after she has been acquitted. Because defendant was
acquitted in the circuit court, property taken from her as a
result of the municipal court judgment must be returned.
[286 Or.App. 213]
City of Lebanon appeals from an order of the circuit court
directing the city to return defendant's dog Sam after
defendant was acquitted of second-degree animal abuse.
See ORS 133.653(2) (providing for appeal of an order
to return things seized). The acquittal occurred in a second
trial on the charge. In a prior trial, defendant had been
convicted of the charge in the Lebanon Municipal Court.
Premised on that conviction, the municipal court ordered Sam
forfeited. Defendant appealed the judgment of conviction to
the circuit court, the case was tried anew, and, ultimately,
defendant was acquitted. After defendant's acquittal, the
circuit court ordered the return of defendant's dog. The
city challenges the order, arguing that the circuit court
erred because ORS 167.350 authorized forfeiture and because
the municipal court denied defendant's request to stay
execution of the sentence pending retrial in the circuit
court. For the reasons that follow, we conclude that the
circuit court did not err in ordering Sam's return. We
city charged defendant in the Lebanon Municipal Court with
second-degree animal abuse, ORS 167.315 (defining the offense
as intentionally, knowingly, or recklessly causing physical
injury to an animal). The Lebanon Police Department seized
Sam and placed him in the custody of Linn County Animal
Control pending the criminal proceedings. A jury convicted
defendant of the offense. As part of defendant's
sentence, the municipal court ordered Sam forfeited to Linn
County Animal Control for adoption pursuant to ORS
167.350. That same day, defendant filed a notice of
appeal to the circuit court along with [286 Or.App. 214] a
motion in the municipal court to stay execution of the
sentence pending appeal. The municipal court denied the
request for a stay. The city took no action to delay the
dog's adoption. As a result, Sam was transferred to an
adoption organization, and a third party adopted Sam.
the case was tried anew and defendant was acquitted,
defendant filed a motion for Sam's return. Relying on ORS
133.633, defendant argued, among other things, that the city
was required to return her dog because Sam was property that
was no longer needed for evidentiary purposes and because
defendant was lawfully entitled to possess him. The city objected
to the motion, arguing, among other things, that ORS 167.350
authorized forfeiture and that the municipal court had denied
defendant's motion to stay the sentence. The circuit
court ordered the city to return defendant's dog.
appeal in this court, the parties renew their arguments. The
gist of the city's argument is that the forfeiture aspect
of the municipal court's sentence is irreversible,
despite defendant's acquittal in the circuit court.
Defendant disagrees. We review for legal error because the
arguments raise issues about the applicability and meaning of
ORS 167.350 and ORS 133.633. See State v. Wixom. 275
Or.App. 824, 828, 366 P.3d 353 (2015), rev den, 359
Or. 166 (2016) (questions of law reviewed for legal error).
case centers on two statutes: ORS 167.350 and ORS 133.633.
The former, ORS 167.350, permits a court to order an animal
forfeited as part of sentencing for conviction on a charge of
animal abuse. Insofar as it goes, we agree [286 Or.App. 215]
with the city that ORS 167.350 authorized the municipal court
to order forfeiture of a defendant's animal as part of a
sentence upon conviction of second-degree animal abuse. On
the other hand, ORS 133.633 allows an "individual from
whose person, property or premises things have been
seized" to "move the appropriate court to return
things seized to the person or premises from which they were
seized." To succeed on a claim under that statute, a
person must establish that the item is no longer needed for
evidentiary purposes and that the person can lawfully possess
the item sought to be recovered. ORS 133.643(3) - (4);
Filipetti v. Dept. of Fish and Wildlife. 224 Or.App.
122, 132, 197 P.3d 535 (2008).
issue on appeal turns on whether the circuit court erred in
ordering the city to return defendant's property upon
acquittal after the municipal court had ordered the property
forfeited under ORS 167.350 as part of defendant's
sentence. A court is permitted to order forfeiture, but it is
contingent upon a court having determined that defendant is
guilty of the offense charged. ORS 167.350(1). Necessarily,
we have recognized that "[t]here can be no sentence,
probation or other sanction after an acquittal."
State v. Branstetter.166 Or.App. 286, 289-90, 296,
1 P.3d 451 (2000), rev'd on other grounds. 332
Or. 389, 29 P.3d 1121 (2001).We have characterized a forfeiture
that is part of sentencing under ORS 167.350 as a punitive
forfeiture. Id. at 296-97; see also State v.
Branstetter.181 Or.App. 57, 68, 45 P.3d 137, rev
den,334 Or. 632 (2002) (Armstrong, J., concurring)
("[ORS 167.350] is unquestionably punitive, and it
requires a conviction before it can become effective.").
In this case, although the forfeiture was authorized under
ORS 167.350 as part of the sentence in municipal court,
defendant cannot continue to be subject to a punitive
sanction after she has been acquitted. An acquittal is an
acquittal. That outcome necessarily implicates the forfeiture
that is part of the judgment in municipal court. See
Harvey Alum. v. School District No. 9,248 Or. 167, 172,
433 P.2d 247 (1967) ("It has been repeatedly held that
the reversal of a lower court decree nullifies the decree and
leaves the case standing as if no decree had been entered [,
]" and therefore, "action taken in reliance [286
Or.App. 216] upon a lower court decree ordinarily is at the
risk that it will be reversed on appeal."); see also
Nelson v. Colorado, ...