State v. Herrera

An appeal does not fall under ORS 138.053(3) because a defendant challenges only the entry of the judgment of conviction. ORS 138.050 controls because the essence of defendant’s arguments concern whether conviction should be entered, therefore the appeal must be dismissed.

Defendant appealed a judgment of conviction for unlawful possession of methamphatamine, ORS 475.894, assigning error to the entry of that judgment after the revocation of conditional discharge, ORS 475.245.  In this case’s circumstances ORS 138.053(3) is inapposite and ORS 138.050 controls. ORS 138.050 precludes appellate consideration of defendant’s challenge and the state does not dispute the substantive merit of the defendant’s contention or that the matter would qualify for “plain error” review and correction. In this case defendant’s appeal does not fall within the purview of ORS 138.053(3) because defendant challenges only the entry of the judgment of conviction. Where defendant’s sole argument is that no conviction should have been entered the appeal should be dismissed. ORS 138.050 controls and because the gravamen of defendant’s arguments concern whether conviction should be entered the appeal must be dismissed. The Court will dismiss a criminal defendant’s appeal from a judgment based on a guilty or no-contest plea if the only arguments made on appeal challenge the defendant’s conviction. Appeal dismissed.