Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Lebanon v. Milburn

Court of Appeals of Oregon

June 14, 2017

CITY OF LEBANON, Plaintiff-Appellant,
v.
SILVIA LEE MILBURN, Defendant-Respondent.

          Submitted February 6, 2017

         Linn County Circuit Court 14CR05367 Carol R. Bispham, Judge.

          John E. Kennedy and The Morley Thomas Law Firm fled the briefs for appellant.

          Geordie Duckler fled the brief for respondent.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case 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.

         Affrmed. [286 Or.App. 213]

          DeVORE, J.

         The 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.[1] 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 affirm.

         The 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.[2] 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.

         After 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.[3] 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.

         On 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.[4] 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).

         This 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).

         The 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).[5]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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.