FILED: November 13, 2003
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
DWAYNE BRIAN BURNS,
Appeal from Circuit Court, Multnomah County.
William J. Keys, Judge.
Argued and submitted May 27, 2003.
Stephanie Hortsch, Deputy Public Defender, argued the cause for appellant. With
her on the brief was David E. Groom, Acting Executive Director, Office of
Public Defense Services.
Katherine H. Waldo, Assistant Attorney General, argued the cause for respondent.
With her on the brief were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.
Before Landau, Presiding Judge, and Armstrong and Brewer, Judges.
Defendant appeals an order that found he had violated the conditions of his
probation, that imposed a six-month jail sanction for the violations, and that extended his
probation to October 23, 2002. He argues that the court erred in imposing a probation
sanction and extending his probation without obtaining a valid waiver of his right to
counsel. The state concedes the trial court erred but argues that we should dismiss the
appeal as moot because defendant has already completed his sentence.
Defendant does not concede that his appeal is moot and argues that the trial
court's decision could affect the outcome of pending litigation in which he is a party and
court action on his prospective application to practice law. Defendant has not explained
how reversal of the probation violation order could affect the result in his other pending
case, so there is no basis for us to conclude that our decision could affect that case. With
regard to defendant's admission to the bar, defendant must complete law school and pass
the bar examination before the probation violation order could affect his bar admission.
Furthermore, it would be speculative for us to conclude that the order will affect his
admission when considered in conjunction with other information about his fitness to
practice. Although the order might have an effect on defendant's admission, "the mere
possibility of future adverse consequences does not render a case justiciable."