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Guembes v. Roberts

Court of Appeals of Oregon

June 28, 2017

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,
v.
John Lyle ROBERTS, Defendant-Appellant.

          On appellant's petition for reconsideration of Appellate Commissioner's order of dismissal fled February 13, 2017.

         Multnomah County Circuit Court 080203083 Adrienne C. Nelson, Judge.

          John Lyle Roberts pro se for petition.

          Before Egan, Presiding Judge, and Garrett, Judge.

         Case 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 appeal.

         Reconsideration allowed; previous order withdrawn.

         [286 Or. 472] EGAN, P. J.

         In an unpublished order, we dismissed defendant's appeal for lack of jurisdiction after determining that the notice of appeal had been filed prematurely-that is, after the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.[1] 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.

         Defendant, 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 Commissioner's order.

         As a 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.").

         In 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).[2] Similar to [286 Or. 474] current ORS 19.270(4), former ORS 19.033(4) (1989) provided, in part:

         "(4) 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 determines that:

"(a) At the time of the filing of the notice of appeal the trial court intended to enter an ...

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