Summary of Opinion: State v. Foster (Oregon Supreme Court)

Factual and Procedural Background

Ralph Foster was convicted in the Circuit Court of Lake County of larceny of livestock and filed a notice of appeal. The respondent (through the district attorney, Chas. H. Combs and Herbert P. Welch) moved to dismiss the appeal on the grounds that the appeal was not perfected in accordance with the statute. An initial opinion dated July 19, 1932 denied the motion to dismiss because the motion did not appear to have been served on the defendant. Upon further consideration and after noting a certificate of service attached to the motion, the court reversed and annulled its prior opinion and allowed the motion to dismiss on July 22, 1932.

Relevant procedural facts in the record: the circuit court on May 21, 1932 extended the time for filing the transcript of record in this court to and including May 31, 1932; the transcript of evidence was filed June 2, 1932; the transcript of record was not filed in this court until June 6, 1932. The court treated the transcript of record as having been filed after the statutory time allowed.

Legal Issues Presented

1. Whether the respondent's motion to dismiss an appeal may be considered if the motion was not served on the defendant as required by statute.
2. Whether failure to file the transcript of record within the time prescribed by law justifies dismissal of the appeal.
3. Whether the appellant made a showing that the clerk's failure to file the transcript within the statutory time was not imputable to the appellant.

Arguments of the Parties

Respondent's Arguments

• The appeal was not perfected in accordance with statute, and therefore the appeal should be dismissed.
• The transcript of record was not filed within the statutory time; specifically, although the circuit court extended the time to May 31, 1932, the transcript of record was not filed until June 6, 1932.
• The motion to dismiss was properly served on the defendant (as shown by a certificate of service attached to the motion), supporting consideration of the motion.
• Under the governing statutes and precedent, the appellant bears the burden of showing that any failure of the clerk to file the transcript within the required time was not imputable to the appellant; no such showing was made.

Appellant's Arguments

The opinion does not contain a detailed account of the appellant's legal arguments; there is a notation of "No appearance, contra."

Table of Precedents Cited

Court's Reasoning and Analysis

The court first observed that a motion to dismiss in a criminal appeal under §13-1221, Oregon Code 1930, is addressable where an appeal is irregular in a substantial particular, and that such a motion must be presented with notice to the defendant. Initially the court believed the motion had not been served on the defendant and denied the motion. On further review the court discovered a certificate showing the motion had been served, and it reversed and annulled its prior opinion.

The court then analyzed the statutory filing requirement in §13-1220, Oregon Code 1930, which requires the clerk of the court where the notice of appeal is filed to transmit the transcript of record to this court within thirty days thereafter, or within any further time as the court may allow. The record showed the circuit court extended the time for filing the transcript to May 31, 1932, but the transcript of record was filed here on June 6, 1932 (and the transcript of evidence on June 2, 1932), i.e., after the extended deadline.

The court emphasized that the statutory requirement does not relieve the appellant of the obligation to show that a clerk's failure to file the transcript within the prescribed time was not imputable to the appellant. Citing State ex rel. v. Estes and other Oregon cases, the court noted there was no showing by the appellant explaining the late filing or allocating responsibility to the clerk rather than the appellant. Because the transcript of record was not filed within the statutory time and the appellant made no showing excusing the delay, the court concluded the appeal had effectively been abandoned.

On that basis the court allowed the motion to dismiss the appeal.

Holding and Implications

Holding: APPEAL DISMISSED.

Implications: The direct effect of the decision is dismissal of Ralph Foster's appeal for failure to file the transcript of record within the statutory time and for failure to show the clerk's delay was not imputable to the appellant. The opinion does not announce broader changes in law beyond applying the established statutory requirements and cited precedents; it enforces existing rules regarding timely filing of transcripts and the appellant's burden to account for delays.