State v. Blas-Fernandez

FILED: May 3, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Appellant,

v.

CATALINA BLAS-FERNANDEZ,

Respondent.

A127253 (Control), A127254
(Cases Consolidated)

Appeal from Circuit Court, Washington County.

Thomas W. Kohl, Judge.

Argued and submitted February 27, 2006.

Eric D. Wilson, Assistant Attorney General, argued the cause for appellant. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and David J. Amesbury, Assistant Attorney General.

No appearance for respondent.

Before Schuman, Presiding Judge, and Brewer, Chief Judge, and Edmonds, Judge.*

PER CURIAM

Reversed.

*Edmonds, J., vice Richardson, S. J.

PER CURIAM

The state appeals from an order granting defendant's motions to set aside her arrest records. We reverse.

Defendant was arrested in two separate incidents. The first arrest occurred on June 4, 2003, and the second occurred on November 4, 2003. On August 25, 2004, she brought the present proceeding in circuit court to set aside her arrest record. ORS 137.225(1)(b) provides in part:

"At any time after the lapse of one year from the date of any arrest, if no accusatory instrument was filed, * * * the arrested person may apply to the court which would have jurisdiction over the crime for which the person was arrested, for entry of an order setting aside the record of such arrest."

However, ORS 137.225(7) limits the application of that provision:

"The provisions of subsection (1)(b) of this section do not apply to a person arrested within the three-year period immediately preceding the filing of the motion for any offense, excluding motor vehicle violations, and excluding arrests for conduct associated with the same criminal episode that caused the arrest that is sought to be set aside."

Here, defendant's June 4, 2003, arrest occurred within three years preceding the filing of the motion to remove the records of her November 4, 2003, arrest, and her November 4, 2003, arrest occurred within the three years preceding the filing of the motion to remove the records of her June 4, 2003, arrest. Neither motion should have been granted. (1)

Reversed.

1. We also note that defendant's motion to remove the records of her November 4, 2003, arrest was premature under ORS 137.225(1)(b) regardless of the limitation on that statute imposed by ORS 137.225(7).