State v. Langlois

600 P.2d 872 (1979) 287 Or. 503

STATE of Oregon, Respondent,
v.
Ronald Norman LANGLOIS, Petitioner.

78-4-262; 78-4-263; CA 11427; CA 11848; SC 26355.

Supreme Court of Oregon, In Banc.

Submitted on Petition for Review July 24, 1979. Decided October 2, 1979. Rehearing Denied October 30, 1979.

Emil R. Berg, Oregon City, for petitioner.

James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Thomas H. Denney, Asst. Atty. Gen., Salem, for respondent.

MEMORANDUM OPINION.

Defense counsel moved for discovery asking for the handwritten notes of the police officers. The state moved for a protective order exempting the notes from disclosure. The trial court denied the motion for a protective order. The state then informed the trial court that it was not going to turn over the notes to the defense and the trial court could either suppress the testimony of the officer making the notes or dismiss the case. The state suggested it would be "proper" and "appropriate" to suppress so that it could appeal. The trial court entered an order suppressing the officer's testimony. The state appealed and the Court of Appeals reversed. State v. Langlois, 40 Or. App. 629, 595 P.2d 1388 (1979). The defendant petitioned for review and we reverse, instructing the Court of Appeals to dismiss the appeal for lack of jurisdiction.

The problem is caused by ORS 138.060 which limits the orders from which the state can appeal. The state can appeal from an order suppressing evidence, but it has no right of appeal from an order allowing discovery against it. Under facts which we regard as legally identical to those in the present case we held in State v. Koennecke, 274 Or. 169, 173-174, 545 P.2d 127 (1976), that the state was not entitled to appeal. We adhere to the principle of that decision.

Reversed with instructions.