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State v. Mullins

Summarized by: 

Date Filed: 09-21-2011
Case #: A141529
Brewer, C.J. for the Court; & Gillette, S.J.
Full Text Opinion: http://www.publications.ojd.state.or.us/A141529.pdf

Criminal Procedure: The 30 days that a defendant has to file a notice of appeal from a supplemental judgment begins when the defendant receives notice that the judgment has been entered, not when appellate counsel receives notice.

Defendant appealed a supplemental judgment ordering restitution, asserting that the court erred in rendering a decision when it failed to allow defendant to be properly heard. Judgment for conviction was entered on February 5, 2009, with a restitution judgment to be determined at a later date. On July 10, supplemental judgment imposing restitution was entered, and defendant filed his appeal of that decision on March 23, 2010. Defendant asserted that his notice of appeal was timely under ORS 138.071(4), which permits notice of appeal of supplemental judgment if notice is given within 30 days of defendant’s receipt of notice that judgment has been entered. Defendant argued that the timing did not commence until his appellate counsel received notice of supplemental judgment. The Court of Appeals held otherwise, stating that State v. Fowler precluded defendants claim owing for lack of timely notice. Fowler held that “defendant’s failure to check the status of that judgment does not excuse [their] subsequent failure to file a timely notice of appeal from the supplemental judgment.” Dismissed for lack of jurisdiction; otherwise affirmed.