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Felkel v. Thompson
Citations: 970 P.2d 657; 157 Or. App. 218; 1998 Ore. App. LEXIS 2052Docket: 97C-11669; CA A101875
Court: Court of Appeals of Oregon; November 18, 1998; Oregon; State Appellate Court
In a post-conviction proceeding, Craig Felkel appealed the denial of his post-conviction relief, but his appeal was deemed untimely. Historically, the Oregon Court of Appeals issued show cause orders for such cases, allowing petitioners to explain why their appeals should not be dismissed for tardiness. However, the court reexamined this practice, concluding that it improperly affected jurisdiction. The court held that ORS 138.071(4), which allows for an extension of the appeal timeframe under certain conditions, does not apply to the "manner of taking the appeal" as described in ORS 138.650. ORS 138.650 clearly distinguishes between the time for filing an appeal and the manner of taking it, emphasizing that the time limitation must be adhered to strictly. Consequently, the court dismissed Felkel's appeal, affirming that the escape provision of ORS 138.071(4) does not apply to post-conviction appeals under ORS 138.650. ORS 138.650 and related statutes differentiate between appeal procedures and the timeline for filing appeals. Various statutes outline the requirements for filing a notice of appeal, including its form, service, filing process (ORS 138.081, 138.110, 138.120), necessary signatures (ORS 138.090), record transmission to the Court of Appeals (ORS 138.185), and the appointment of appellate counsel and transcript provision (ORS 138.500). ORS 138.071 uniquely addresses the time for appealing, specifically stating that it applies only to criminal appeals and does not extend to post-conviction appeals under ORS 138.650. The language in ORS 138.071(4)(e) indicates that a denial of certain motions bars post-conviction relief on the same grounds, suggesting it cannot pertain to post-conviction appeals. In contrast, ORS 138.500 applies to both criminal defendants and post-conviction petitioners, reinforcing that ORS 138.071(4)'s provisions are not intended for post-conviction contexts. Therefore, ORS 138.650 mandates that appeals from post-conviction judgments must be filed and served within 30 days of final judgment, rendering the current appeal untimely and resulting in its dismissal. Additionally, ORS 419A.200(4)(a) contains a similar "escape hatch" provision for juvenile court appeals, emphasizing that the "manner of taking an appeal" refers to procedural aspects, and legislative history indicates no intent to apply ORS 138.071(4) to post-conviction judgments.