Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Behrle v. Taylor

Court of Appeals of Oregon

February 8, 2017

JUSTIN THERON BEHRLE, Petitioner-Respondent,
v.
Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Appellant.

         Umatilla County Circuit Court CV141618; Rick J. McCormick, Senior Judge.

         On petitioner's petition for reconsideration of Appellate Commissioner's order dismissing petitioner's cross-appeal as untimely fled August 23, 2016.

          Jason Weber and O'Connor Weber LLC, for petition.

          Before Egan, Presiding Judge, and Shorr, Judge.

         Case Summary:

         Petitioner seeks reconsideration of the Appellate Commissioner's order dismissing petitioner's cross-appeal as untimely. The state appealed from the judgment granting post-conviction relief in part. Petitioner filed notice of cross-appeal more than 30 days after entry of the judgment, but within 10 days after expiration of 30-day appeal period.

         Held:

         The time to file a post-conviction appeal is governed solely by ORS 138.650(1). ORS 138.650(1) does not grant either party an additional 10 days after the 30-day period has expired to file notice of cross-appeal. Therefore, petitioner's notice of cross-appeal was not timely filed.

         Petition for reconsideration allowed; order of dismissal adhered to.

          EGAN, P. J.

         Petitioner seeks reconsideration of the Appellate Commissioner's order dismissing petitioner's cross-appeal as untimely. The issue is whether a party to a postconviction case may file a notice of cross-appeal after expiration of the 30-day appeal period described in ORS 138.650 but within the additional 10-day period provided in ORS 138.071(3). We conclude that ORS 138.071(3) is not applicable to post-conviction appeals and adhere to the order of dismissal.

         The material facts are procedural and undisputed. The post-conviction court entered a judgment granting relief on some, but not all, of petitioner's grounds for postconviction relief on February 16, 2016. Defendant, superintendent of the correctional institution in which petitioner is confined (the state), filed a notice of appeal from the judgment on March 16, 2016, which was 29 days after entry of the judgment. On March 23, 2016, within 10 days after the expiration of the 30-day appeal period, petitioner filed a notice of cross-appeal.

         The state moved to dismiss the cross-appeal as untimely, and the Appellate Commissioner granted that motion. Petitioner now ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.