State Ex Rel. Schrunk v. Johnson

776 P.2d 863 (1989)

97 Or.App. 420

THE STATE OF OREGON, ex rel. Michael D. Schrunk, District Attorney for Multnomah County, State of Oregon, Appellant, v. The Honorable Nely JOHNSON, Judge of the District Court of the State of Oregon for Multnomah County, and the District Court of the State of Oregon for Multnomah County, Respondents. The State of Oregon, ex rel. Michael D. Schrunk, District Attorney for Multnomah County, State of Oregon, Appellant, v. The Honorable Nely Johnson, Judge of the District Court of the State of Oregon for Multnomah County, and the District Court of the State of Oregon for Multnomah County, Respondents.

A8603-01477, A8603-01478; CA A43829 (Control), CA A43830.

Court of Appeals of Oregon.

Argued and Submitted November 23, 1988.

Decided July 5, 1989.

Reconsideration Denied August 18, 1989.

Review Denied September 19, 1989.

*864 Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Lawrence Matasar, Portland, argued the cause for respondents. With him on the brief was Hoffman, Matasar & Glaeser, Portland.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

State appeals denials of its petitions for writs of mandamus and prohibition, sought to prevent the defendant judge from enforcing an order for a new trial. We reverse and remand with instructions to issue the writ of mandamus and to dismiss the petition for writ of prohibition.

On August 5, 1985, a jury returned a verdict of guilty in State v. Diane Englestad, Multnomah County District Court Case No. DA XXXXXX-XXXX. On January 13, 1986, defendant entered a judgment of conviction and imposed sentence, at which time Englestad filed a motion for a new trial. On January 31, 1986, the court held an evidentiary hearing on Englestad's motion. At the conclusion of the hearing, defendant orally stated that she would grant a new trial on her own motion under ORCP 64 G; ORS 136.535.[1] On February 14, 1986, 32 days after entry of the judgment of conviction, defendant filed a written order granting a new trial and setting out the reasons for the order. On March 13, 1986, she filed an amended order identical to the February 13, 1986, order, except that it contained at the end: "Signed March 13, 1986 nunc pro tunc January 31, 1986." State sought writs of mandamus and prohibition to prevent the judge from enforcing the order.[2] The petitions were denied, and state appeals.

State argues that ORCP 64 G precluded defendant from granting a new trial, because her order was not reduced to writing and filed within 30 days of the entry date of the original judgment. We agree. ORCP 64 G provides:

"If a new trial is granted by the court on its own initiative, the order shall so state and shall be made within 30 days *865 after the entry of the judgment. Such order shall contain a statement setting forth fully the grounds upon which the order was made, which statement shall be a part of the record in the case."

Defendant first asserts that a notation made in the district court docket on the date of the hearing satisfies the requirement for a written order. That notation states "[DEFENDANT'S] MOTION GRANTED SET FOR JURY TRIAL." Defendant cites State v. Gatzke, 80 Or. App. 21, 720 P.2d 1313 (1986), for the proposition that an informal, written notation in a district court case is the functional equivalent of a formal, written order in a circuit court case.

In Gatzke, a police officer who cited the defendant for a traffic infraction failed to appear when the case was called for trial. The trial judge dismissed the case, writing on the back of the citation, "Dism P O no app." We held that that notation met the formal requirement for a written order of dismissal because, after the notation was made "[t]here was nothing further for the trial court to do at that point that could have enhanced the effectiveness of the order * * *." 80 Or. App. at 25, 720 P.2d 1313. By contrast, an order for a new trial under ORCP 64 G is not effective unless it contains "a statement setting forth fully the grounds upon which the order was made." ORCP 64 G. No grounds were stated in the district court docket notation made in this case.

Defendant next argues that, because her oral statement on January 31, 1986, clearly indicated her intent to grant a new trial and set out the grounds on which her order would be based, that oral statement satisfied ORCP 64 G. We recently considered and rejected a similar argument under ORCP 64 F, relating to motions for a new trial brought by a party to the action. In Conely and Conley, 97 Or. App. 134, 776 P.2d 860 (1989), the court entered a judgment, and the plaintiff filed a motion for a new trial, which the trial judge orally denied from the bench. However, no written order on the motion was entered until 74 days after the original judgment. The plaintiff then filed a notice of appeal within 30 days after the date when the written order was entered. ORS 19.026(2). We dismissed the appeal as untimely, holding that, because no written order on the motion for a new trial was entered within 55 days after the judgment was filed, the motion was presumed denied on the 55th day. ORCP 64 F. We specifically held that the trial court's oral denial of the motion within the 55-day period was of no effect, because "a statement from the bench does not constitute an order or a judgment until it appears in a written order or judgment." 97 Or. App. at 137, 776 P.2d at 861; see also McCarty v. State, 45 Or. App. 21, 607 P.2d 219 (1979), rev. den. 289 Or. 71 (1980).

Although the language of ORCP 64 G differs somewhat from that of ORCP 64 F,[3] the difference is not significant here. Under both rules, the trial court loses its authority to order a new trial after a certain time. We see no reason to apply a different standard of formality to orders based on the court's own motion, as opposed to orders based on a party's motion.[4]

Reversed and remanded with instructions to issue the writ of mandamus (A43829) and to dismiss the petition for writ of prohibition (A43830).

NOTES

[1] The court apparently granted the new trial on its own initiative, rather than on Englestad's motion, because the grounds relied upon by Englestad are not enumerated in ORCP 64 B.

[2] Defendant does not challenge the writ of mandamus as a remedy for the state in this action. We note, however, that, had the state challenged the order soley on the ground that defendant's ruling was erroneous on the merits, that ruling would not be redressable by mandamus. State ex rel. Schrunk v. Keys, 97 Or. App. 65, 776 P.2d 861 (1989).

[3] ORCP 64 F states that a motion for a new trial "shall be heard and determined" within 55 days; ORCP 64 G states that an order on the court's own initiative "shall be made" within 30 days.

[4] We reject defendant's argument that her amended order nunc pro tunc cured the untimeliness of the original order. To give effect to such an order would, in our view, entirely undermine the time limitation requirements relating to the entry of judgments and orders.