State v. Voshell

• Decision Date: 07 September 1967
• Citation: 430 P.2d 1010,247 Or. 534
• Parties: STATE of Oregon, Respondent, v. Harlan Vale VOSHELL, Appellant.
• Court: Oregon Supreme Court

Page 1010

430 P.2d 1010

247 Or. 534

STATE of Oregon, Respondent, v. Harlan Vale VOSHELL, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 6, 1967.

Decided Sept. 7, 1967.

Oscar D. Howlett, Portland, argued the cause and filed the briefs for appellant.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK, JJ.

HOLMAN, Justice.

This is an appeal from a judgment of conviction of the crime of burglary not in a dwelling. Defendant pleaded not guilty and waived a trial by jury. Trial was commenced on March 4 before the court. Thereafter a comedy of errors ensued. Defendant, before completion of the state's case, requested permission to change his plea. The request was granted. The judge assumed that defendant thereafter pleaded guilty. He did not. Nevertheless a plea of guilty was entered by the court and a presentence investigation was secured. On April 19, defendant was sentenced to serve five years imprisonment in the penitentiary. Prior to the execution of the sentence, the judgment of conviction and sentence were set aside on May 26 at defendant's request. A new trial was also directed. The order directing a new trial was vacated on July 21, after the expiration of term time, and defendant was required to continue the original trial, which concluded with his conviction.

Defendant contends that he should have been allowed a complete retrial of the case and that it was error to require him to continue the original trial.

The trial court properly set aside the judgment and sentence based upon the non-existent plea. In the absence of a plea of guilty or conviction by trial, the court had no authority to enter a judgment of conviction. People v. Sturdy, 235 Cal.App.2d 306, 311, 45 Cal.Rptr. 203 (1965).

The order vacating the judgment also directed that a new trial be had. Later, the court set aside the direction on the grounds it had no authority to grant a new trial under ORS 17.605 et seq. A motion for a new trial is not a proper way to question the validity of a plea of guilty. Williams v. United States, 290 F.2d 217, 218 (5th Cir. 1961). '* * * as there never was a trial * * *, the proper remedy (is) a motion to vacate the judgment and withdraw the plea.' Pritchard v. State, 210 N.E.2d 372, 373 (Ind.1965). See also Pulaski v. State, 23 Wis.2d 138, 126 N.W.2d 625 (1964), cert. den. 379 U.S. 862, 85 S.Ct. 124, 13 L.Ed.2d 65, (1964). In the instant case, there was no completed trial, since the judgment of conviction was based upon the non-existent plea of guilty. Therefore, the trial court was within its authority in vacating the order for a new trial and directing that the original trial be continued.

ORS 1.055(2) has eliminated the requirement that an order be vacated during term time. The only requirement is that an order be vacated within a reasonable time. Miller v. Miller, 228 Or. 301, 365 P.2d 86 (1961). This court is not prepared to say that, under the circumstances, an unreasonable length of time elapsed between May 26, when the order granting the new trial was made, and July 21, when the order of vacation followed.

Defendant contends he was entitled to a mistrial because the trial court was under the impression defendant desired to plead guilty and because at the time of the abortive sentence the defendant's prior record was disclosed...