State v. Montgomery

• Decision Date: 18 January 1983
• Citation: 657 P.2d 668,294 Or. 417
• Parties: STATE of Oregon, Respondent on review, v. Sidney Darrell MONTGOMERY, Petitioner on review. CA A20185; SC 28955.
• Court: Oregon Supreme Court

Page 668

657 P.2d 668

294 Or. 417

STATE of Oregon, Respondent on review, v. Sidney Darrell MONTGOMERY, Petitioner on review.

CA A20185; SC 28955.

Supreme Court of Oregon.

Argued and Submitted Dec. 2, 1982.

Decided Jan. 18, 1983.

David E. Groom, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the brief and petition for review was Gary D. Babcock, Public Defender, Salem.

Richard Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before LENT, C.J., and LINDE, ^* PETERSON, CAMPBELL, ROBERTS, and CARSON, JJ.

PETERSON, Justice.

This case presents a question of appellate criminal procedure: How does an indigent defendant obtain appellate review of a post-judgment circuit court order denying him a verbatim transcript at state expense? The defendant was convicted by jury of burglary in the first degree and was sentenced on January 20, 1981. On February 19, 1981, the defendant filed a notice of appeal. On March 9, 1981, the trial court granted defendant a partial transcript consisting only of jury instructions and the exceptions thereto. Defendant then moved the trial court for a transcript of the trial testimony to be provided at state expense. This motion was denied on March 12, 1981. On April 13, 1981, defendant petitioned this court for a writ of mandamus to compel the trial court to grant his motion for a more complete transcript. In the exercise of our discretion, Or.Const. Art. VII, § 2, we denied defendant's petition on June 17, 1981. Defendant then moved the trial court again for an order granting a transcript of testimony. On July 20, 1981, the circuit court again denied defendant's request for a transcript at state expense. On August 3, 1981, the defendant petitioned this court for a second writ of mandamus. We denied the second petition for a writ of mandamus. Defendant then filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on December 14, 1981.

On January 6, 1982, the Public Defender who was representing the defendant advised the Court of Appeals that he could not process the appeal without a transcript of testimony. The Court of Appeals directed the Public Defender to proceed with the appeal. The defendant assigned as error only the denial of a transcript by the circuit court. The Court of Appeals affirmed. State v. Montgomery, 58 Or.App. 630, 650 P.2d 111 (1982).

ORS 138.040 concerns appeals from convictions and provides, in pertinent part, "The defendant may appeal to the Court of Appeals from a judgment on a conviction in a * * * circuit court * * *. Upon an appeal * * * any decision of the court in an intermediate order or proceeding may be reviewed." (Emphasis added.) The Court of Appeals held that the order denying a transcript was not an "intermediate order" and was not reviewable upon an appeal from the judgment of conviction under ORS 138.040.

In dictum, the Court of Appeals stated that the defendant should have filed a notice of appeal from the order denying his motion for a transcript; that such an order was appealable under ORS 19.010(2)(c). We allowed review to consider how, if at all, a defendant could obtain appellate review of the circuit court's denial of a transcript.

It is important to distinguish between orders from which an appeal may be taken and orders which are reviewable on appeal. Appealability is not identical with reviewability.

Normally, appeals are governed by statutes which set forth when, if and how an appeal may be taken. ORS 138.040 is illustrative. It states that a defendant "may appeal to the Court of Appeals from a judgment of conviction." The appealable order is the judgment of conviction. ORS 138.040 also tells us what orders are reviewable after an appeal is taken:

"Upon an appeal * * * any decision of the court in an intermediate order or proceeding may be reviewed."

ORS 19.140 concerns reviewability of orders in noncriminal cases. It contains language similar to the language found in ORS 138.040 and provides, in part, "Upon an appeal, the appellate court may review any intermediate order involving the merits or necessarily affecting the judgment or decree appealed from." Appealability generally is concerned with whether an appeal can be taken at all. Usually, but not always, appeals lie only from final judgments and orders. Reviewability generally involves the consideration of a variety of rulings and orders made by the court, usually before judgment. Generally, a party seeking review of an order or ruling must have made an appropriate motion or objection in order to lay a foundation for appellate review.

The parties have suggested various ways of obtaining appellate review of an order denying a transcript. The defendant argues that the order denying the transcript is reviewable upon an appeal from the judgment as an "intermediate order" under ORS 138.040, even though the order was entered after the judgment of conviction. The Court of Appeals, in dicta, suggested that a defendant who has been denied a transcript should appeal from the denial of the transcript under ORS 19.010(2)(c), which provides:

"(2) For the purpose of being reviewed on appeal the following shall be deemed a judgment or decree:

"* * *.

"(c) A final order affecting a substantial right, and made in a proceeding after judgment or decree."

Mandamus, ORS 34.110-.240, is arguably an appropriate method of obtaining appellate review of the post-judgment trial decision to deny a transcript. Finally, ORAP 6.15 provides for a motion to supplement the record: "The appellate court, on motion of a party or on its own motion, may order * * * that portions of the oral proceedings be transcribed, certified and transmitted to it." We now examine each of these four methods of procedure.

ORS 138.040

The defendant asserts that an order made after judgment which denies his motion for a transcript at state expense is an "intermediate" order which may be reviewed on an appeal from the judgment. Defendant does not assert that the order denying the transcript is appealable, he merely claims that it is reviewable upon an appeal from the judgment. This court has recognized the distinction between reviewability and appealability in previous cases. In State v. Evans, 98 Or. 236, 237, 193 P. 927 (1920), this court recognized this distinction, writing:

"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."

In State v. Endsley, 214 Or. 537, 542, 331 P.2d 338 (1958), this court discussed the reviewability and appealability of a denial of a motion in the nature of coram nobis. We wrote:

"* * * If it be proper to term the order in this case an 'intermediate' order * * *, 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. * * *" Id. at 542, 331 P.2d 338.

"Intermediate order" within the meaning of ORS 138.040 means an order made before judgment. See State v. Caruso, 289 Or. 315, 320, 613 P.2d 752 (1980) (dictum). An intermediate order is "[a]n order made between the commencement of the action and its final determination, incident to and during its progress, which does not determine the cause but only some intervening matter relating thereto." Black's Law Dictionary 732 (rev. 5th ed 1979). Normally, the final determination of a criminal action is the judgment of conviction or acquittal. An order coming after judgment is not an intermediate order. Application of Nationwide Mutual Insurance Co., 39 Misc.2d 782, 241 N.Y.S.2d 589, 597 (1963); Johnson v. International Harvester Co. of America, 144 Misc. 521, 258 N.Y.S. 865, 866 (1932). The Court of Appeals properly held that ORS 138.040 does not authorize review of the trial court denial of a transcript. ¹

ORS 19.010(2)(c)

The Court of Appeals opined that the order denying the transcript was appealable under ORS 19.010(2)(c). 58 Or.App. at 634, 650 P.2d 111. While the "intermediate order" clause of ORS 138.040 presents a question of reviewability, ORS 19.010(2)(c) presents a question of appealability.

ORS 138.010 provides, "The only mode of reviewing a judgment or order in a criminal action is that prescribed by ORS 138.010 to 138.300." We have repeatedly held that unless the statutes otherwise provide sections of the civil code in reference to appeals do not apply to criminal actions. Welch v. Gladden, 253 Or. 228, 232, 453 P.2d 907 (1969); State v. Endsley, 214 Or. 537, 540, 331 P.2d 338 (1958); State v. Rosser, 162 Or. 307, 320, 87 P.2d 783 (1939) (reinstating appeal); State v. Archerd, 144 Or. 309, 310-11, 24 P.2d 5 (1933); State v. Berger, 51 Or. 166, 167, 94 P. 181 (1908); State v. Ellis, 3 Or. 497, 498 (1869). ORS 19.010(2)(c) does not apply to criminal appeals. The Court of Appeals erred in stating that a post-judgment order denying a motion for a transcript was appealable under ORS 19.010(2)(c). ²

ORS 34.110

-.240

(Mandamus)

Defendant has twice petitioned this court for a writ of mandamus to compel the circuit court to grant a full verbatim transcript at state expense. Twice we denied his petition for a writ of mandamus. Our denials of defendant's petitions were proper under ORS 34.110, which provides in part, "The writ [of mandamus] shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law." As discussed below, defendant has an adequate remedy in the ordinary course of the law by way of a request for a transcript under ORS 138 500(2), followed by a motion to supplement the record under ORAP 6.15. Thus, mandamus will not lie to compel the trial...