State v. Panichello, s. 83-11-35475
Citation | 692 P.2d 720,71 Or.App. 519 |
Decision Date | 19 December 1984 |
Docket Number | Nos. 83-11-35475,s. 83-11-35475 |
Parties | STATE of Oregon, Respondent, v. Dennis PANICHELLO, Appellant. ; CA A33671; 83-11-35476; CA A33672; 83-11-35477; CA A33673; 84-02-30833; CA A33738; 84-02-30834; CA A33739; 84-02-30835; CA A33740. |
Court | Court of Appeals of Oregon |
Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.
These six criminal cases were consolidated for appeal. Because we are obliged to examine our jurisdiction, City of Hermiston v. ERB, 280 Or. 291, 570 P.2d 663 (1977), and in view of our recent decision in State v. Green, 68 Or.App. 518, 684 P.2d 575, rev. den. 297 Or. 601 (1984), we consider it necessary to determine whether the notices of appeal are timely filed. We conclude that the notices were timely filed and that we have jurisdiction to hear the appeal.
In each of the cases, judgments of conviction were signed by the trial judge on September 20, 1984, and each judgment was "stamped" as being received by the clerk on September 25. The clerk entered the judgments in the journal on September 27. A notice of appeal from each judgment was filed in this court on October 26, which is the thirtieth day following the day the judgments were entered in the journal.
State v. Green, supra, holds that under ORS 138.071(1) the time for appeal commences to run when the judgment or order appealed from is "stamped 'filed' " by the clerk. Green would require us to dismiss the present appeal, because the notices of appeal were filed more than 30 days after the judgments were "stamped" on September 25 as received by the clerk.
State v. Green, supra, was an appeal by the state from an order suppressing evidence. One of the issues was whether the state's appeal was timely, which required us to determine whether Blackledge v. Harrington, 289 Or. 139, 611 P.2d 292 (1980), a civil case, controls appeals in criminal cases. Blackledge reasoned that ORS 19.026(1), which governs civil appeals, requires the notice of appeal to be filed within 30 days from the date of "entry" of the judgment and that "entry" is a different act than "filing." Blackledge holds that, in civil appeals, entry in the journal, not filing in the clerk's office, is the act which triggers the running of the time to appeal. 289 Or. at 142-43, 611 P.2d 292.
The time for filing a criminal appeal is governed by ORS 138.071 which provides:
State v. Green, supra, after quoting ORS 138.071(1), states:
68 Or.App. at 521, 684 P.2d 575. (Emphasis supplied.)
The emphasized language is wrong. Statutes require that a journal be maintained as part of the circuit court records. ORS 7.010(1) provides:
"The records of the circuit and county courts include a register, journal, judgment docket, execution docket, fee register, jury register and final record."
ORS 7.030 specifies the function of the journal.
"The journal is a record wherein the clerk or court administrator shall enter the proceedings of the court during term time, and such proceedings in vacation as the statutes specially direct."
The clerk is directed to enter a judgment of conviction in the journal. ORS 137.170 provides:
"When judgment upon a conviction is given, the clerk shall enter the same in the journal forthwith, stating briefly the crime for which the conviction has been had."
Because Green was based in part on our erroneous conclusion that there is no statutorily required criminal journal in which "entry" of an order or judgment can be made, it is necessary to reexamine ORS 138.071.
We begin our analysis with ORS 138.071(1) and the phrase "given or made." Those words first appeared in the General Laws of Oregon, ch. 23, § 229 (Deady 1845-1864), which provided: "An appeal must be taken within one year after the judgment or order appealed from was given or made." Every version of the statute to the present has used the words "given or made," and they are used in the sense that an order or judgment is given or made in favor or against a party. The question is when the order or judgment that is given or made becomes effective for appeal purposes.
Generally, orders and judgments signed in chambers are effective when filed with the clerk. ORS 3.070 relates to the powers of a circuit court performing a variety of judicial functions in chambers. It provides that orders and judgments "if signed other than in open court, other than orders not required to be filed and entered with the clerk before becoming effective, shall be transmitted by the judge to the clerk * * * and shall become effective from the date of filing." (Emphasis supplied.) The terms "filing" and "entry" are distinct acts with distinct legal significance. Blackledge v. Harrington, supra, 289 Or. at 142, 611 P.2d 292; Charco, Inc. v. Cohn, 242 Or. 566, 570-71, 411 P.2d 264 (1966); Henson and Henson, 61 Or.App. 210, 656 P.2d 345 (1982).
In State v. Delker, 26 Or.App. 497, 503, 552 P.2d 1313, rev. den. (1976), the defendant moved to dismiss the state's appeal, because it was untimely. The defendant argued that the appeal time began to run when the trial judge orally announced his order, rather than from the time the order was filed with the clerk. We said:
Arguably, Delker stands for the proposition that an order or judgment "given or made" becomes effective when filed with the clerk. However, other decisions by the Supreme Court and this court in criminal cases have used "entry" and "filing" interchangeably.
For example, in State v. Davis, 207 Or. 525, 531, 296 P.2d 240 (1956), the state appealed from an order sustaining a demurrer to the indictment. The defendant contended that the appeal was not timely. Under former ORS 138.070 (now ORS 138.071(1)), "an appeal must be taken within 60 days after the judgment or order appealed from was given or made." The court said: (Emphasis supplied.) However, in Welch v. Gladden, 253 Or. 228, 232, 453 P.2d 907 (1969), the court addressed the issue of the timeliness of the defendant's appeal: "We think the judgment should have allowed defendant 30 days from the entry thereof in which to file a notice of appeal from his conviction." (Emphasis supplied.) In State v....
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