Granlund v. Lampert

FILED: August 29, 2001

IN THE COURT OF APPEALS OF THE STATE OF OREGON

GREGORY GRANLUND,

Appellant,

v.

ROBERT O. LAMPERT,
Superintendent,
Snake River Correctional Institution,

Respondent.

99-02-30302M; A110783

Appeal from Circuit Court, Malheur County.

J. Burdette Pratt, Judge.

Argued and submitted July 17, 2001.

Bob Pangburn and Rebecca Neal-Richardson filed the briefs for appellant.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Kistler, Judge, and Van Hoomissen, Senior Judge.

PER CURIAM

Reversed and remanded with instructions to enter post-conviction relief in form of a delayed appeal; award of attorney fees vacated; otherwise affirmed.

PER CURIAM

Petitioner appeals the trial court's judgment denying his claims for post-conviction relief and ordering him to pay the cost of his court-appointed attorney. The state concedes that petitioner's counsel provided constitutionally inadequate representation by failing to refer the case to the state Public Defender's office in time for it to file a notice of appeal. We therefore reverse the judgment and instruct the trial court to grant post-conviction relief in the form of a delayed appeal. See Cross v. Maass, 127 Or App 554, 873 P2d 436 (1994).

We have considered petitioner's other assignments of error, and, except for the one concerning attorney fees, we reject them without discussion. Petitioner did not need to bring this case until after the resolution of the delayed appeal, ORS 138.510(3)(b), but he in fact did so. We have previously decided a petitioner's non-appellate post-conviction claims when we ordered a delayed appeal. For reasons of judicial economy we follow that procedure in this case. See Clawson v. Maass, 119 Or App 287, 850 P2d 398 (1993).

A trial court has discretionary authority to require repayment of court-appointed attorney fees. ORS 151.505. In light of our conclusion that petitioner is entitled to post-conviction relief, we vacate the trial court's award in this case. That court may again exercise its discretion in that regard when it enters judgment on remand.

Reversed and remanded with instructions to enter post-conviction relief in the form of a delayed appeal; award of attorney fees vacated; otherwise affirmed.