Not Showing Up on Time to Suppression Hearing
Defendant's failure to appear at a suppression hearing:
Such conduct does not empower the trial court to refuse to hold the hearing. State v. Desirey, 99 Ore. App. 283, 782 P.2d 429 (1989).
In Desirey, the defendant failed to appear at the time set for a hearing on her motion to suppress. the trial court struck the motion. In a later court appearance, the defendant sought to renew the motion, but the trial court ruled that she had waived her right to an omnibus hearing. Id. at 285.
We reversed, holding that
"the court could have decided the motion in defendant's absence, but it did not have the authority to refuse to consider it. Moreover, even though she may have waived her right to be present, there is no evidence in the record that would support a finding that defendant's failure to appear constituted a waiver of her right to a hearing on the matter." Id.
In State v. Smith, 312 Ore. 561, 822 P.2d 1193 (1992), the Supreme Court dismissed the appeal of a defendant who absconded from probation supervision.
However, even as to fugitive defendants, dismissal of an appeal is appropriate only when the absence has "significantly interfered with the operation of the appellate process." State v. Lundahl, 130 Ore. App. 385, 389, 882 P.2d 644 (1994).
In State v. Peterson, 66 Ore. App. 477, 479 n 1, 675 P.2d 1055 (1984), we merely held that the defendant's pretrial motion and a motion to reconsider the denial of that motion were sufficient to preserve a claimed error, not that the second motion was necessary. 66 Ore. App. at 479 n 1.
More recently, as the state acknowledges, the Supreme Court explicitly rejected the proposition that a defendant must renew a previously denied motion in order to preserve the claimed error for appeal. State v. Cole, 323 Ore. 30, 34, 912 P.2d 907 (1996). In Cole, the defendant, acting pro se, filed an unsuccessful pretrial motion to suppress.
At trial, represented by counsel, the defendant did not renew his motion to suppress. He was convicted and appealed on the ground that the trial court failed to warn him adequately of the risks of self-representation. the state argued that, because the defendant did not renew the motion to suppress at trial, his appellate assignment of error was not preserved.
the Supreme Court disagreed: "Once an evidentiary ruling is made pretrial, the lack of later relitigation of the same issue does not render any claim of error associated with the ruling unpreserved." Id. at 35.
The state asserts that Cole is inapposite because in that case, unlike the circumstances here, the trial court did issue a pretrial decision on the merits of the defendant's motion.