Opinion
A168255
05-11-2022
Antonio Alejandro GUTIERREZ, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. DuClos, Deputy Public Defender, Office of Public Defense Services, for petition. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, for response.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. DuClos, Deputy Public Defender, Office of Public Defense Services, for petition.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, for response.
Before Tookey, Presiding Judge, and Egan, Judge, and Aoyagi, Judge.
PER CURIAM Petitioner seeks reconsideration of our opinion in Gutierrez v. Board of Parole , 317 Or. App. 552, 506 P.3d 1129 (2022), in which we concluded that the case was moot and, as a part of that decision, allowed costs to the Board of Parole and Post-Prison Supervision (board) as the designated prevailing party. See ORAP 13.05(3) (stating that the respondent is the prevailing party, unless we reverse or substantially modify the judgment or order from which the appeal or judicial review was taken). Pursuant to ORAP 6.25(1)(c), petitioner requests that we modify the opinion to eliminate the cost award to the board.
Petitioner also argues that, if we award costs to the board, we should also reconsider whether petitioner's case is moot, because an award of costs "may have a practical effect on the rights of the parties." Given our resolution, we need not address that argument.
In DeYoung v. Board of Parole , 332 Or. 266, 27 P.3d 110 (2001), the Supreme Court stated that "appellate courts may decline to award costs to the prevailing party in cases of dismissal, for reasons of fairness or otherwise." See also ORS 20.310(1) ("In any appeal to the Court of Appeals *** the court shall allow costs and disbursements to the prevailing party, *** unless the court directs otherwise."). The board, as the prevailing party, concedes that we should decline to award costs here for two reasons—first, because we dismissed petitioner's case as moot and did not address the merits, and second, because of petitioner's indigent status and limited resources. We accept the board's concession and modify the disposition to delete the award of costs.
Reconsideration allowed; former disposition modified and adhered to as modified.