State v. Endsley

Citation331 P.2d 338,214 Or. 537
PartiesSTATE of Oregon, Respondent, v. Lorance Omer Victor ENDSLEY, Appellant.
Decision Date05 November 1958
CourtSupreme Court of Oregon

Louise Jayne, Portland, argued the cause and filed a brief for appellant.

David Robinson, Jr., Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was F. Leo Smith, Dist. Atty., Portland.

LUSK, Justice.

Defendant, a prisoner in the penitentiary under sentence for the crime of second degree murder, filed a 'Petition for a Writ of Error Coram Nobis' in the circuit court for Multnomah County, the court in which he was convicted. Defendant's conviction was upon a plea of guilty. He alleges facts in his petition and in affidavits in support thereof tending to show that his plea was induced by a coerced confession, in violation of his constitutional rights. The court, after a hearing, entered an order denying the petition. Defendant, within the time prescribed by statute, served and filed a notice of appeal to this court.

The state has moved to dismiss the appeal on the ground that the order appealed from is not an appealable order. The motion was heretofore denied, with leave, however, to renew it at the argument. It has been renewed. We are of the opinion that it must be allowed.

An appeal is not a matter of absolute right, but a statutory privilege. See list of cases in 2 Oregon Digest, Appeal and Error, k1, p. 276. This is true of criminal as well as civil cases. State v. Long, 177 Or. 530, 164 P.2d 452; State v. Fehl, 152 Or. 104, 107, 52 P.2d 1118; State v. Berg, 138 Or. 20, 3 P.2d 783, 4 P.2d 628; State v. Yarde, 121 Or. 297, 302, 254 P. 798; State v. Lewis, 113 Or. 359, 230 P. 543, 232 P. 1013. We have repeatedly said that it is unnecessary to cite authorities for a rule so well established and familiar, and do so now only because of a contention in the defendant's brief, to be noticed later, that appeal in Oregon is a matter of constitutional right.

The pertinent statutory provisions are as follows:

ORS 138.010. 'Writs of error and of certiorari in criminal actions are abolished. The only mode of reviewing a judgment or order in a criminal action is that prescribed by this chapter.'

ORS 138.020. 'Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases prescribed in this chapter, and not otherwise.'

ORS 138.040. 'The defendant may take an appeal to the Supreme Court from a judgment on a conviction in a circuit court or from an order refusing to dismiss the indictment, as provided in ORS 134.120; and upon an appeal, any decision of the court in an intermediate order or proceeding forming a part of the judgment roll, as prescribed in ORS 137.190, may be reviewed.'

ORS 134.120, which is referrd to in ORS 138.040, reads: 'If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial at the next term of the court in which the indictment is triable after it is found, the court shall order the indictment to be dismissed, unless good cause to the contrary is shown.'

ORS 138.050. 'A defendant who has plead guilty may take an appeal from a judgment on conviction where it imposes an excessive fine or excessive, cruel or unusual punishment. * * *'

By ORS 138.060, the state is authorized to appeal from a judgment for the defendant on a demurrer to the indictment or from an order of the court arresting the judgment.

As we have frequently said, the procedure provided by the criminal code in respect of appeals is complete in itself. State v. Stone, 178 Or. 268, 273, 166 P.2d 980, and cases there cited.

As stated, the appeal is attempted to be taken from an order denying a petition for a writ of coram nobis. In State v. Huffman, 207, Or. 372, 297 P.2d 831, 837, we held in an opinion by Mr. Justice Brand that such a remedy (properly called a 'motion in the nature of coram nobis') is available as a means of obtaining relief in a limited class of cases 'from a conviction obtained in violation of constitutional right.' 207 Or. at page 394, 297 P.2d at page 840. In the present case, the defendant prayed 'for an Order to produce Defendant in Court, and hold a hearing on the issues raised, and after such hearing and determination of the facts and the law, that the Court adjudge and decree that the Judgment of Conviction and Sentence be set aside and held for naught, and that Defendant have such other and further relief as the Court deem meet in the premises.' The court's denial of the defendant's petition was analogous to the denial of a motion for a new trial. The Supreme Court of the United States has described such a motion as 'a belated effort to set aside the conviction and sentence,' United States v. Morgan, 346 U.S. 502, 505, 74 S.Ct. 247, 249, 98 L.Ed. 248, and as 'a step in a criminal case.' Id. In Huffman v. Alexander, 197 Or. 283, 338, 251 P.2d 87, 253 P.2d 289, 292, we said: 'The only relief which can be granted under a petition for a writ of error coram nobis is the setting aside of judgment and the granting of a new trial.' In State v. Poierier, 212 Or. 369, 372, 320 P.2d 255, 257, we characterized such a petition as 'a delayed motion for a new trial.' As applied to this case, of course, since there has never been a trial, that expression is not altogether accurate. But if the relief sought by the petitioner were to be granted, the judgment of conviction would be set aside and, as we assume, the case would stand for further proceedings as though there had never been a plea of guilty and a sentence. Thus, a motion in the nature of coram nobis is not, like habeas corpus, a new case, civil in nature, but simply a part of the original criminal proceeding. 1

Such being the nature of the motion, it is clear that the order of the circuit court is not appealable, for it is neither 'a judgment on a conviction' either after trial or upon a plea of guilty, nor 'an order refusing to dismiss the indictment' for failure to bring the defendant to trial within the time fixed by statute. Those are the only orders from which the defendant may appeal under the statutes which we have set out above, and ORS 138.020 leaves no possible doubt that it is only 'in the cases prescribed in this chapter' that either the state or the defendant may appeal from a judgment in a criminal action.

ORS 138.040 provides that 'upon an appeal, any decision of the court in an intermediate order or proceeding forming a part of the judgment roll * * * may be reviewed.' If it be proper to term the order in this case an 'intermediate' order (see People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427), still, it is not for that reason an appealable order, but, at most, only such an order as the court is authorized to review on an appeal from the judgment. As no such appeal was taken, the provision last quoted, even though it could ever be availed of when appeal is taken from a conviction on a plea of guilty, has no application. State v. Evans, 98 Or. 214, 192 P. 1062, 193 P. 927, points out the distinction between an appealable order and an order which, though not appealable, may, nevertheless, be reviewed. There, this court reversed a judgment of conviction in a criminal action because the trial court erroneously denied a motion for a new trial based on newly discovered evidence. The state filed a petition for a rehearing in which it contended that an order denying a motion for a new trial is not appealable and could not be reviewed. This court held that such an order, when a new trial is sought on the ground of newly discovered evidence or similar grounds, though not appealable, may nevertheless be reviewed on appeal from the judgment. The court said:

'An order denying a motion for a new trial is of course not appealable; for, if reviewable at all, it can only be reviewed by an appeal from the judgment against which the motion was directed. The order denying the motion is reached by appealing from the judgment rendered in the case.' 98 Or. at page 237, 193 P. at page 927.

Few cases upon the question from other jurisdictions have been cited or have come to our attention. Under a statute of New York substantially the same as ours, it was held in People v. Gersewitz, supra [294 N.Y. 163, 61 N.E.2d 429], that an order denying a motion to set aside a conviction, a proceeding which the court said was 'analogous, in some respects, to proceedings initiated by the common law writ of coram nobis,' was not appealable. After that decision the legislature amended the statute so as to provide for an appeal, by either the defendant or the people, in such cases. N.Y.Laws 1947, ch. 706, Code of Criminal Procedure, §§ 517, 518. See People ex rel. Sedlak v. Foster, 299 N.Y. 291, 86 N.E.2d 752.

In California, the statute provides that the defendant may appeal 'from any order made after judgment, affecting the substantial rights of the party' (Calif.Penal Code, § 1237 ), and that the people may appeal from 'any order made after judgment, affecting the substantial rights of the people,' Pen.Code, § 1238(5). Under the latter provision it was held in People v. Gilbert, 25 Cal.2d 422, 154 P.2d 657, that the people has an appeal from an order granting relief on a petition in coram nobis. There being no such statute in Oregon applicable in criminal cases, this decision is, of course, without persuasive force here.

In Huffman v. Alexander, supra, 197 Or. at page 338, 253 P.2d at page 292, we indicated arguendo that there is no right of appeal in this class of cases. In State v. Huffman, supra, 207 Or. at page 386, 297 P.2d at page 837, we referred to the question as a difficult one 'which should be decided only after full presentation by adverse parties.' In that case the circuit court had denied a motion for coram nobis solely on the ground of want of jurisdiction. We said that in such a case 'the normal proceeding...

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