263 P.3d 370
Or. Ct. App.2011Background
- Mullins was convicted of second-degree and third-degree assault with restitution to be determined.
- Judgment of conviction entered February 5, 2009; defendant timely appealed that judgment on March 9.
- A supplemental judgment imposing restitution was entered July 10 and served on trial counsel.
- Appellate counsel filed a notice of appeal from the supplemental judgment on March 23, 2010, asserting timeliness.
- Court dismissed the appeal from the supplemental judgment for lack of jurisdiction, applying Fowler and concluding no timely appeal under ORS 138.071(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal from supplemental restitution judgment | Mullins argues timely under ORS 138.071(4) | Appellate counsel sought relief under 138.071(4) | Fowler controls; no timely appeal from supplemental judgment; dismissal for lack of jurisdiction. |
| Whether ORS 138.071(4) provides relief given the status of the supplemental judgment | ORS 138.071(4) allows appeal within 30 days after notice to defendant | Bennett reasoning urged relief differs; Fowler rejects it | Court follows Fowler; no relief; clock starts from notice to defendant, not appellate counsel. |
Key Cases Cited
- State v. Fowler, 350 Or. 133 (Or. 2011) (timeliness of appeal from supplemental judgment under ORS 138.071(4))
- State v. Ainsworth, 346 Or. 524 (Or. 2009) (untimely filing; reliance on counsel not excusing delay)