State v. Mullins

The 30 day statute of limitations for filing an appeal of a judgment under ORS 138.071(4) begins to run at the time an attorney of record for the defendant has notice of a judgment.

Defendant appealed a supplemental judgment for restitution. Defendant was convicted of assault, and as part of his sentence was ordered to pay restitution in February of 2009. Defendant then filed a timely appeal of his conviction and sentence. On July 9, 2009, the State moved to amend the judgment and restitution. On that day, the court, without a hearing, amended the amount of restitution in a supplemental judgment. Defendant's trial counsel did not become aware of the amendment until November 2009 and Defendant's appellant counsel was not aware of it until March of 2010. Thereafter, on March 30, 2010 Defendant filed an appeal of the supplemental judgment. The State argued, and the Court of Appeals agreed, that the filing of the appeal was not timely under ORS 138.071(4). The Supreme Court held that trial counsel for Defendant was still an attorney of record for him in November of 2009, and Defendant therefore had notice at that time. The Court reasoned that because notice was given to an attorney of record for Defendant in November, Defendant, under ORS 138.071(4), had 30 days from that date to file his notice of appeal. With no notice filed until four months later, the Court held that the subsequent filling was not timely under ORS 138.071(4). Affirmed.