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State v. Meiser

Court of Appeals of Oregon

March 7, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ERIK JOHN MEISER, Defendant-Appellant.

         Clackamas County Circuit Court CR1201547 Katherine E. Weber, Judge.

         Motion in Arrest of Judgment fled November 7, 2017. Notice of Appeal fled December 7, 2017. Amended Notice of Appeal and Motion to Determine Jurisdiction fled January 10, 2018.

         Daniel J. Casey for motion.

          Before DeVore, Presiding Judge, and James, Judge.

         Case Summary:

         Defendant moves the Court of Appeals for determination of jurisdiction in his criminal appeal. Defendant timely fled a motion in arrest of judgment, which the trial court did not decide within 55 days after the date of judgment. Defendant thereafter fled a notice of appeal. Held: Defendant fled an effective notice of appeal and the court has jurisdiction to proceed with the appeal. ORS 136.535 (2003) effectively disconnected motions in arrest of judgment from the "deemed denied" provision of ORCP 64 F(1) made applicable by ORS 136.535 to motions for a new trial. In State v. Starr, 210 Or.App. 409, 150 P.3d 1072 (2007), the court held that the "deemed denied" provision applied only to motions for new trial. ORS 136.535 (2009) effectively undid the ORS 136.535 (2003) amendment discussed in Starr, once again making motions in arrest of judgment in criminal cases subject to the "deemed denied" provision of ORCP 64 F(1).

         Motion to determine jurisdiction granted; jurisdiction determined; appeal to proceed.

         [290 Or.App. 618] DeVORE, P. J.

         Defendant requests that the court determine whether he prematurely filed a notice of appeal from a judgment of conviction and sentence. Defendant timely filed a motion in arrest of judgment, the trial court did not decide that motion within 55 days after the date of entry of judgment, and defendant thereafter filed a notice of appeal. Under the circumstances, we conclude that defendant filed an effective notice of appeal and that we have jurisdiction to proceed with the appeal.

         The trial court entered the judgment on November 7, 2017. On November 17, 2017, defendant filed a motion in arrest of judgment. Defendant filed a notice of appeal from the judgment on December 7, 2017. The fifty-fifth day after entry of judgment was January 1, 2018. The trial court did not enter an order ruling on the motion in arrest of judgment on January 2, 2018. On January 10, 2018, defendant filed an amended notice of appeal.

         Today, ORS 136.535(2) provides that "[t]he provisions of ORCP 64 F governing motions for a new trial apply to and regulate motions in arrest of judgment in criminal actions." ORCP 64 F(1) provides that a "motion to set aside a judgment and for a new trial, with the affidavits or declarations, if any, in support thereof, shall be filed not later than 10 days after the entry of the judgment sought to be set aside, or such further time as the court may allow." Further, ORCP 64 F(1) provides that a "motion to set aside a judgment and for a new trial * * * shall be heard and determined by the court within 55 days from the time of the entry of the judgment, and not thereafter, and if not so heard and determined within said time, the motion shall conclusively be deemed denied." (Emphasis added.)

         In this case, because the fifty-fifth day after the date of entry of judgment was a legal holiday, the trial court had until January 2, 2018, to enter an order deciding defendant's motion in arrest of judgment.[1] In Propp v. Long, 313 [290 Or.App. 619] Or 218, 831 P.2d 685 (1992), the court held that, under ORCP 64 F, a trial court has the full 55-day period to enter an order deciding the motion; therefore, absent an order deciding the motion sooner, the motion is not deemed denied until the fifty-sixth day. But, here, the fifty-fifth day was January 1, a legal holiday. Generally, under ORS 174.120(3), when the last day by which a court may perform an act is a legal holiday, the act must be performed "on the next day that the court is open for the purpose of filing pleadings and other documents." The same is true under ORCP 10 A.[2] The trial court was open for those purposes on January 2, 2018. It follows, then, that defendant's motion was not deemed denied until January 3, 2018. Under ORS 138.071(2)(b), defendant had 30 days from that date to file notice of appeal. Defendant did so by filing an amended notice of appeal on January 10, 2018. Therefore, defendant filed an effective notice of appeal within the time permitted. This appeal was not premature or without jurisdiction.

         We write to note this conclusion because it has not always been so. In State v. Starr, 210 Or.App. 409, 150 P.3d 1072 (2007), as here, the defendant timely filed a motion in arrest of judgment, the trial court did not enter an order deciding the motion within 55 days of the date of entry of judgment, and the defendant filed a notice of appeal within 30 days of expiration of the 55-day period of time. The court held that, under ORS 136.535 (2003), [3] the "deemed denied" [290 Or.App. 620] provision of ORCP 64 F(1) applied only to a motion for new trial and not to a motion in arrest of judgment and, therefore, the "deemed denied" provision of ORS 138.071(2)(b) applied only to a motion for a new trial and not to a motion in arrest of judgment. We concluded that "because no order disposing of the motion has been entered, the judgment in this case is not subject to appeal until an order is entered denying the motion." Starr, 210 Or.App. at 412.

         Prior to 2003, both a motion for new trial and a motion in arrest of judgment were subject to the same "deemed denied" period. See ORS 136.535(1), (3) (2001) (motion for new trial or motion in arrest of judgment must be "heard and determined" within 20 days of entry of judgment, failing which the motion would be deemed denied). In 2003, the legislature enacted House Bill 2069, amending ORS 136.535 to delete subsections (1) through (3). Or Laws 2003, ch 288, ยง 1. That legislation had the effect of disconnecting motions in ...


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