State v. Curran
| Decision Date | 02 June 1981 |
| Citation | 291 Or. 119,628 P.2d 1198 |
| Parties | STATE of Oregon, Respondent-Petitioner, v. Scott Hunter CURRAN, Appellant-Petitioner. CA 14335; SC 27038; SC 27046. . * |
| Court | Oregon Supreme Court |
Howard R. Lonergan, Portland, filed the brief and argued the cause for appellant-petitioner. With him on the brief were Clint A. Lonergan and Richard L. Lonergan, Portland.
Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent-petitioner. With him on the brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
After defendant's conviction following a jury trial and sentence upon a charge of unlawful possession of a controlled substance, cocaine, 1 the district attorney filed a motion for an order forfeiting 2 a certain motor vehicle allegedly belonging to defendant. The supporting affidavit alleged that the vehicle belonged to defendant, that defendant used the vehicle "in the unlawful possession and transportation" of the cocaine, and that such possession and transportation constituted a part of the criminal transaction which was the basis of the conviction.
The trial court held that defendant was not entitled to a jury trial and, after hearing, ordered the vehicle forfeited. Defendant appealed, 3 contending the proceedings were a nullity because the Code of Criminal Procedure did not prescribe the procedure for forfeiture and contending that he was entitled to a jury trial of the forfeiture proceedings. The Court of Appeals held against defendant on the first contention but for him on the right to a jury trial and reversed and remanded for a jury trial. State v. Curran, 45 Or.App. 859, 609 P.2d 427 (1980).
Both defendant and the state petitioned for review, which we allowed, ORS 2.520, 289 Or. 587 (1980), to consider the basis for appellate jurisdiction and whether a trial by jury is required.
As we have noted in the past, appellate jurisdiction is limited and springs from statute. Smallwood v. Erlandson, 281 Or. 699, 576 P.2d 374 (1978). As a direct appeals court, we have dismissed upon our own motion for want of appellate jurisdiction; indeed, such dismissal must take place despite the wishes of the parties when there is no jurisdiction on appeal. See Longee v. Carter, 283 Or. 93, 582 P.2d 1 (1978). As a review court, we have held, on our own motion, that a case in which we have allowed review must be dismissed for want of appellate jurisdiction in the Court of Appeals. Ragnone v. Portland School District No. 1J, 289 Or. 339, 613 P.2d 1052 (1980); J. Gregcin, Inc. v. City of Dayton, 287 Or. 709, 601 P.2d 1254 (1979). Consequently, we asked the parties in this case to address that matter in addition to the questions presented by their respective petitions for review.
The state answered, by first seeming to question whether any proceeding under ORS 471.660 and 471.665 4 is required at all to forfeit a vehicle found to carry a controlled substance when the owner has been convicted of an offense "in connection with the seizure." The state contended that if a proceeding under those code sections is required, it is a "special statutory proceeding for forfeiture in connection with a violation of a law enacted under the police power." That being so, asserted the state, this is an appeal "in a special statutory proceeding" under ORS 19.010(4). 5
This answer, although tempting to adopt and thereby avoid having precisely to fix the source of appellate jurisdiction, will not do because of our discussion below of the nature of this proceeding, and the fact that this appeal was not taken from a "judgment on a conviction." ORS 138.040.
The judgment on a conviction in this case was embodied in the document entitled "SENTENCE" dated and entered March 22 1979. See note 2, supra. No timely appeal was taken from that judgment. No attempt was made by defendant to question the validity of that judgment. Despite defendant's characterization of the document of May 4, 1979, as an "amended judgment," see note 3, supra, it did not purport to, and did not, amend the document entered March 22, 1979. ORS 137.010(6) 6 indicates that an order exercising the authority to decree a forfeiture "may be included as a part of the judgment of conviction," but that was not done here.
Quite simply, this is not an appeal from a judgment on a conviction, and we cannot look to ORS 138.040 as the source of appellate jurisdiction.
ORS 138.020 is arguably applicable. That section provides:
"* * * (T)he defendant may as a matter of right appeal from a judgment in a criminal action * * *."
We resort to ORS 131.005(6) for the definition of a "criminal action":
" 'Criminal action' means an action at law by means of which a person is accused and tried for the commission of an offense."
By the time the district attorney filed his motion for an order of forfeiture, the defendant had already been accused, tried and sentenced upon conviction of the offense. We are of the opinion that appellate jurisdiction does not arise from ORS 138.020. 7
One facet remains to be explored. ORS 137.010 is found in that group of code sections dealing with sentencing and judgment on conviction. ORS 137.010(6) prescribes:
Neither party has cited or argued the applicability of this subsection, but we think it has significance. It indicates that the legislature viewed the remedy of forfeiture as being a civil penalty. The inclusion of the subsection in the Criminal Procedure Code indicates that the court having jurisdiction to try the criminal action could, also, proceed to the matter of exercise of authority to decree a forfeiture. The subsection allows, but does not require, the decree of forfeiture to be made a part of the judgment of conviction.
We conclude the trial court was authorized to proceed with the matter of forfeiture without the necessity of resort by the district attorney to a new and separate cause either under ORS 30.410 to 30.450, pertaining to recovery of fines and forfeitures, or by way of an in rem proceeding.
All of this leads us to the conclusion that if appellate jurisdiction obtains, the source must be found in ORS 19.010. It will be recalled that the defendant argued that if this is a "civil action," that section applies, but he specified no particular part of the section. The state took the position that this was a special statutory proceeding and ORS 19.010(4), therefore, was the source of appellate jurisdiction. ORS 19.010, in possible pertinent part, is as follows:
We have reached the conclusion that ORS 19.010(2)(c) is applicable. The order of May 4, 1979, was final in disposing of the motion for an order of forfeiture. It affected a substantial right and was made in a proceeding after the judgment of conviction. Having reached that conclusion, we need not, and do not, express any opinion as to whether ORS 19.010(4) also may authorize this appeal, but we do note that it is arguably applicable.
Defendant has argued that the absence of any procedure for effectuating forfeiture in the Code of Criminal Procedure makes the proceedings actually used a nullity. The premise for that position is that forfeiture is a criminal proceeding.
Historically, the concept of a forfeiture is founded on the idea that a chattel attains some guilt in the commission of a criminal act. The concept dates back to biblical times, was part of the Roman system, and was carried over into the English common law. Under early English common law, property which caused death, i. e., a deodand, was forfeited to the Crown to be put to use to provide relief to the dependents of the deceased. This forfeiture action was abolished in England in the mid-nineteenth century and was not carried over into the law of the United States.
Traditionally, the purpose of forfeiture legislation is not merely to punish criminal activity but to make it unprofitable. Forfeiture of Property Used in Connection with Criminal Acts, 25 Wayne L.R. 83, 84 (1978); see also, Forfeiture of Derivative Contraband Under the Contraband Seizure Act and the Comprehensive Drug Abuse and Control Act of 1970, 40 Ohio St.L.J. 1007, 1009 (1979). Other justifications for forfeiture include removing equipment necessary to the carrying on of the illegal activity and recouping some of the costs of law enforcement. See, Forfeiture of Derivative Contraband, supra.
In forfeiture proceedings a distinction is traditionally made between contraband per se and derivative contraband. Derivative contraband is property which,...
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...case." Before Austin, the Oregon Supreme Court had discussed what rights were required in a forfeiture proceeding. In State v. Curran, 291 Or. 119, 628 P.2d 1198 (1981), the defendant had been convicted of unlawful possession of cocaine. ORS 167.247(2) 14 allowed forfeiture on the convictio......
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