State v. Lesley

HASELTON, P. J.

The state, as appellant, and defendant, as respondent, both petition for reconsideration and modification of our dismissal of the state’s appeal. State v. Lesley, 170 Or App 623, 13 P3d 571 (2000). We allow both petitions in order to amplify our reasoning and adhere to our original opinion as so modified.

In our original opinion, we held that the state’s appeal from the trial court’s order allowing defendant’s motion for new trial was untimely.¹ The material circumstances were as follows: (1) On September 13, 1999, after a jury had found him guilty, defendant moved for a new trial; (2) on September 14, 1999, the judgment of conviction was entered; (3) on September 30,1999, the trial court issued, but did not enter, a letter opinion stating that it was allowing the new trial motion; (4) on November 1, 1999 — 48 days after entry of judgment — the trial court entered an order allowing defendant’s motion for new trial; and (5) on December 1, 1999, the state appealed from that order. We concluded that the state’s appeal was barred because it was not served and filed within the time prescribed in ORS 138.071(2) and ORS 136.535.

ORS 138.071(2) provides:

“If a motion for new trial or motion in arrest of judgment is served and filed the notice of appeal shall be served and filed within 30 days from the earlier of the following dates:

“(a) The date of entry of the order disposing of the motion; or

“(b) The date on which the motion is deemed denied, as provided in ORS 136.535.”

ORS 136.535, in turn, provides, in part:

“(3) The motion [for a new trial] shall be heard and determined by the court within 20 days after the time of the entry of the judgment, and if not heard and determined within that time, the motion shall conclusively be considered denied.

“(4) Except as otherwise provided in this section, ORS 19.430 and ORCP 64 A, B and D through G shall apply to and regulate new trials in criminal actions[.]”

In this case, the “deemed denied” date was October 4 (20 days after the entry of judgment), and the order allowing the new trial was entered on November 1. Because the state had not filed its appeal “within 30 days from the earlier of of those dates, ORS 138.071(2), we concluded that it was untimely. State v. Lesley, 170 Or App at 626.

Í. In petitioning for reconsideration, the state contends that our construction of the statutes is legally erroneous, ignores the realities of criminal practice and procedure, and yields absurd results. Underlying the state’s position are three predicates: First, as a matter of basic criminal procedure, the state cannot move for a new trial in a criminal case — only the defendant can do so. Second, the time limitations of ORS 138.071(2) governing appeals of new trial orders, were enacted in 1971. Or Laws 1971, ch 965, § 21. Third, ORS 138.060(8), which authorize state’s appeals of orders granting new trials, was not enacted until 1999. Or Laws 1999, ch 946, § 2.²

Given the convergence of those factors, the state asserts that, as originally enacted, the time limitations of ORS 138.071(2) were intended to apply — and, indeed, could only apply — to defendants’ appeals from denials of new trial motions. That is, as enacted, ORS 138.071(2) did not govern the state’s appeals from new trial orders because no such appeals were authorized until 1999. The state further contends that, although — or, perhaps, because — ORS 138.071(2) was not amended concurrently with the enactment of ORS 138.060(8) in 1999, the two statutes must be “harmonized.” Under that “harmonized” approach, ORS 138.071(2)(b), the “deemed denied” provision, would be treated as a non sequitur for state’s appeals because the state is authorized only to appeal from orders “granting” new trials. ORS 138.060(8).³ Instead, only ORS 138.071(2)(a) — the “entry of the order disposing of the motion” provision — would govern state’s appeals of new trial orders.

We cannot so construe ORS 138.071(2). With respect, the state’s proposal — which the dissent endorses— transcends mere “harmonizing” and would require us to rewrite the statute. To reiterate, subsection (2) provides, without qualification or adornment:

“If a motion for new trial or motion in arrest of judgment is served and filed the notice of appeal shall be served and filed within 30 days from the earlier of the following dates[.]” (Emphasis added.)

The state’s proposed construction would require us not only to “contextually” read subsection (2)(b) out of the statute but also to completely ignore or delete the “from the earlier of’ language of subsection (2). Moreover, that “reconstruction” would apply to state’s appeals only. We would be required, in short, to “insert what has been omitted, or to omit what has been inserted[.]” ORS 174.010. That we cannot do.

In so holding, we fully appreciate the anomalies the state and the dissent have highlighted here. We note, however, that in appropriate circumstances, the state has other remedies. See State ex rel Schrunk v. Johnson, 97 Or App 420, 776 P2d 863, rev den 308 Or 382 (1989) (addressing availability of mandamus where a trial court entered order granting new trial beyond time limitation prescribed in ORS 136.535). Further, to the extent that the anomalies are the product of a failure to revise ORS 138.071 in light of the enactment of ORS 138.060(8), “[t]he answer, if any, lies in legislative action, not judicial artifice.” Ensign v. Marion County, 140 Or App 114, 121, 914 P2d 5 (1996) (Haselton, J., concurring).

We proceed to defendant’s petition to reconsider. That petition does not contest our dismissal of defendant’s cross-appeal. See 173 Or App at 234 n 1. Instead, defendant questions two related aspects of our reasoning (albeit not our result) in dismissing the state’s appeal. Both of defendant’s objections arise from the following language in the original opinion:

“In this case, notwithstanding the trial court’s purported allowance of the new trial motion by way of letter opinion within 20 days of judgment, the written order allowing the motion was not entered within 20 days. Thus, the motion was ‘deemed denied’ as of October 4, ORS 136.535(3) and (4), and the court’s subsequent entry of the written order is ineffective.” 170 Or App at 626.

Defendant first challenges our statement that no written order allowing the motion for new trial was entered within 20 days of the entry of judgment. Defendant contends that that statement was unnecessary to our disposition and was at least arguably erroneous because the trial court’s letter opinion, which was issued within 20 days of judgment, should be deemed sufficient to satisfy the “heard and determined” requirement of ORS 136.535(3) and (4).

We disagree with defendant. Defendant moved to dismiss, invoking ORS 138.071(2) and ORS 136.535(3). The application of those statutes depends, in part, on whether or when the trial court entered an “order disposing of the [new trial] motion.” ORS 138.071(2)(a). The legal significance of the letter opinion was, thus, fairly “in play.” Moreover, even assuming, without deciding, that a letter opinion could ever be deemed sufficient to satisfy ORS 136.535(3) and ORS 138.071(2), the letter opinion in this case was entered on October 5, 1999, 21 days after the entry of judgment and, thus, was entered after the “deemed denied” date. Our consideration and treatment of the letter opinion was correct. See State ex rel Schrunk v. Johnson, 97 Or at 423 (written order allowing new trial must be entered within time prescribed for allowance for new trial motion). Cf. ORS 3.070 (in general, written order, unless executed in open court, not effective until entered).

Defendant’s second objection has merit. Defendant asserts that our characterization of the November 1, 1999, order allowing a new trial as “ineffective” is improper dictum on the legal merits of that order. We agree. The effectiveness of the November 1 order is not material to our jurisdictional analysis and, given our conclusion that we lack jurisdiction, was, and is, beyond our competence. Consequently, we disavow and delete from our original opinion the phrase “and the court’s subsequent entry of the written order is ineffective,” 170 Or App at 626, and, with that deletion, adhere to our original opinion.

Petitions for reconsideration allowed; opinion modified and adhered to as modified.

1 We also dismissed defendant’s cross-appeal on the ground that there was no statutory basis for that cross-appeal. 170 Or App at 626-27. The petitions for reconsideration do not take issue with our disposition of the cross-appeal.

2 ORS 138.060(8) provides:

“The state may take an appeal from the circuit court to the Court of Appeals from:

‘(8) An order granting a new trial[J

3 In all events, the state would never have occasion to appeal from the denial, “deemed” or otherwise, of a defendant’s motion for a new trial.