594 P.2d 422 | Or. Ct. App. | 1979
The City appeals from an order of the circuit court reversing and vacating defendant’s conviction for resisting arrest in the municipal court of the City of Toledo. The circuit court held that the underlying ordinance was unconstitutionally vague. At the outset, defendant contends that the City has no right to appeal the order. We disagree and reverse the circuit court’s order. A brief chronology of the proceedings in this case is necessary to an understanding of our decision.
Following a jury trial, defendant was convicted in the municipal court for the City of Toledo of violations of three city ordinances: littering, disorderly conduct, and resisting arrest. Execution of his sentences, which consisted of fines, jail terms and probation, was suspended to allow him to appeal to the circuit court. That appeal was dismissed on the City’s motion on the grounds that defendant had failed to perfect his appeal within the time permitted. The case was remanded to municipal court for execution of sentence.
On remand, defendant filed a motion requesting that the comb not execute upon the three sentences because they were unlawfully entered
Defendant appealed that order to the circuit court. The City moved for dismissal, or, in the alternative, for an order denying defendant a trial de novo on that appeal and limiting the scope of the appeal to the
At the hearing on the appeal, defendant orally moved to strike the conviction for resisting arrest on the ground that the underlying ordinance was unconstitutionally vague. Following argument, the court agreed and entered an order reversing defendant’s conviction under that ordinance, and affirming the remainder of the amended sentencing order. It is from this order that the City appeals.
The state
"The state may take an appeal from the circuit court or the district court to the Court of Appeals from:
"(1) An order made prior to trial dismissing or setting aside the accusatory instrument;
"(2) An order arresting the judgment;
"(3) An order made prior to trial suppressing evidence; or
"(4) An order made prior to trial for the return or restoration of things seized.”
Only subsection (2) is applicable here. Defendant first argues that the order appealed from was based on a municipal court sentencing order and therefore is "an order on appeal which is not itself appealable by the state, but only by the defendant.”
The powers of the circuit court in an appeal from a criminal action in municipal court, ORS 221.350,
Secondly, defendant argues that the City cannot appeal because no motion in arrest of judgment was made in this case nor was an "order in arrest of judgment” entered. As we held in State v. Cannon/Clark/Green/Donnelly, 17 Or App 379, 521 P2d 1326, rev den (1974), that fact does not preclude a determination that the circuit court’s order was "an order in arrest of judgment.”
Under ORS 136.810 a motion in arrest of judgment may be based upon ORS 135.630(1) or (4).
With respect to the ordinance, the City’s argument focuses on whether the ordinance is unconstitutionally vague. However, it is not necessary for us to reach that issue because we hold that the circuit court was without authority in the second appeal to consider the constitutionality of the ordinance.
Reversed and remanded.
This motion did not raise the constitutional question.
The City is the functional equivalent of the "state” in the criminal procedure statutes.
OBS 221.350 provides:
"Whenever any person is convicted in the municipal court of any city of any offense defined and made punishable by any city charter or ordinance, unless the charter of the city prohibits appeals from such court, such person shall have the same right of appeal to the circuit court within whose jurisdiction the city has its legal situs and maintains its seat of city government as now obtains from a conviction from courts of justice of the peace. The appeal shall be taken and perfected in the manner provided by law for taking appeals from justice courts.”
ORS 135.630(1) and (4) provides:
"The defendant may demur to the accusatory instrument when it appears upon the face thereof:
"(1) If the accusatory instrument is an indictment, that the grand jury by which it was found had no legal authority to inquire into the crime charged because the same is not triable within the county;
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"(4) That the facts stated do not constitute an offense.”