Marta GUEMBES, as Personal Representative for the Estate of Virginia Roberts, on behalf of Kenneth Wilson Cruz Quiroz, Marsha Tatiana Cruz Quiroz, Amanda Romero De Quiroz, and Umberto Quiroz, Plaintiffs-Respondents,
John Lyle ROBERTS, Defendant-Appellant.
appellant's petition for reconsideration of Appellate
Commissioner's order of dismissal fled February 13, 2017.
County Circuit Court 080203083 Adrienne C. Nelson, Judge.
Lyle Roberts pro se for petition.
Egan, Presiding Judge, and Garrett, Judge.
Summary: Appellant seeks reconsideration of the Appellate
Commissioner's order dismissing his appeal. Appellant
fled a notice of appeal after the trial judge had signed the
judgment but before the trial court clerk entered the
judgment in the case register. Following entry of that
judgment, appellant did not file a new or amended notice of
appeal or a notice to proceed with the appeal. Held:
Appellant was not required to file a new notice of appeal
after the trial court's entry of the final judgment. ORS
19.270(5)(a) gives the trial court jurisdiction to enter in
the case register a judgment that the trial judge signed
before the notice of appeal was fled. The statute presupposes
that the Court of Appeals already has jurisdiction in such
circumstances, and that it retains jurisdiction when the
judgment is entered in the register. Thus, appellant's
failure to file a new or amended notice of appeal did not
deprive the Court of Appeals of jurisdiction to consider his
allowed; previous order withdrawn.
Or. 472] EGAN, P. J.
unpublished order, we dismissed defendant's appeal for
lack of jurisdiction after determining that the notice of
appeal had been filed prematurely-that is, after the signing
of the judgment but before its entry-and that defendant had
not filed a new or amended notice of appeal after the entry
of judgment. Petitioner has filed a petition for
reconsideration of that order. We allow reconsideration and
write to address a recurring issue of appellate procedure:
When a party files a notice of appeal after the trial court
judgment is signed but before it is entered into the trial
court register, must the appellant file a new or amended
notice of appeal after the entry of judgment? We conclude
that no new notice or amended notice of appeal is required.
Accordingly, we conclude that we retain jurisdiction to
decide defendant's appeal, and we therefore withdraw the
order dismissing the appeal.
who was convicted of murdering his ex-wife, appeals from a
judgment entered against him in a civil action by the
personal representative of his ex-wife's estate.
Appearing pro se, defendant filed his notice of
appeal after the trial judge had signed the judgment but
before the trial court clerk had entered the judgment in the
case register. Following entry of the judgment, defendant did
not file a new or amended notice of appeal or a notice to
proceed with the appeal. The Appellate Commissioner dismissed
the appeal for lack of jurisdiction due to the failure to
file a new or amended notice of appeal after the entry of
judgment. Defendant seeks reconsideration of the Appellate
general rule, a judgment becomes appealable when it is
entered in the trial court register. See ORS
18.082(1)(c) (providing that, on entry, a judgment
"[m]ay [286 Or. 473] be appealed in the manner provided
by law"). A notice of appeal from a judgment that has
not been entered in the register is jurisdictionally
defective. State v. Ainsworth, 346 Or. 524, 535, 213
P.3d 1225 (2009) (citing ORS 18.082 (1)(c) as an indication
of "the legal significance that the legislature places
on entry of the judgment in the register"); Welker
v. TSPC, 332 Or. 306, 312-13, 27 P.3d 1038 (2001)
("A notice of appeal filed before the time to appeal
begins to run is jurisdictionally defective.");
Garcia v. DMV, 195 Or.App. 604, 609, 99 P.3d 316
(2004) ("[T]o be enforceable and appealable, a judgment
has to be in writing, plainly labeled as a 'judgment,
' and entered in the register with a notation that a
'judgment' has been filed.").
Baugh v. Bryant Limited Partnerships, 312 Or. 635,
825 P.2d 1383 (1992), and Gillespie v. Kononen, 310
Or. 272, 797 P.2d 361 (1990), the Supreme Court considered
the jurisdictional ramifications of a prematurely filed
notice of appeal under then-recently enacted former
ORS 19.033(4) (1989), renumbered as ORS 19.270(4)
(1997). Similar to [286 Or. 474] current ORS
19.270(4), former ORS 19.033(4) (1989) provided, in
Notwithstanding the filing of a notice of appeal, the trial
court shall have jurisdiction, with leave of the appellate
court, to enter an appealable judgment if the appellate court
"(a) At the time of the filing of the notice of appeal
the trial court intended to enter an ...