State v. McFarland , 10 Or. App. 90 ( 1972 )

LANGTBY, J.

These cases were consolidated for appeal. After McFarland was found guilty in a jury trial and sentenced, and after Chappel was found guilty in a trial to the court, they filed notices of appeal. Chappel was sentenced after oral arguments had been heard in this court.

The exact circumstances were involved in each case and the only substantive assignment of error in each was that motions to suppress evidence should have been allowed. After hearing arguments we announced from the bench that we were satisfied there was no error, and we affirmed without opinion. This decision remains unchanged, but a question, not raised by counsel on either side, remains in Chappel’s case regarding whether we had jurisdiction to hear the ■ appeal before he was sentenced. OBS 138.040 provides that on the defendant’s appeal from a “judgment on a conviction” an intermediate order may he reviewed.

OES 138.020 provides:

“* * * the defendant may as a matter of right appeal from a judgment in a criminal action

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OES 138.050 provides :

“A defendant who has plead guilty may take an appeal from a judgment on conviction where it imposes an excessive fine or excessive, cruel or unusual punishment * *

OES 138.070 (now OES 138.071) was amended by Oregon Laws 1971, ch 565, § 21, to provide:

OES 138.071 (1). “* * * [T]he notice of appeal shall be served and filed at any time after verdict, but not later than 30 days after the judgment * *

Before the 1971 amendment the latter statute provided that “[a]n appeal must be taken within 60 days after the judgment * * Thus, the 1971 change in the statute allowed the defendant to give his notice of appeal “after verdict” as distinguished from “after the judgment.”

A sentence is part or all of the judgment of the court. See cases collected in 38A Words and Phrases 352-55, Sentence (1967). See also State v. Nelson, 246 Or 321, 424 P2d 223, cert denied 389 US 964, 88 S Ct 340,19 L Ed 2d 379 (1967).

The defendant can appeal only from a “judgment” or “judgment on a conviction.” OES 138.020, 138.040, 138.050. If the legislative intent was to provide that appeals may be heard after verdict but before sentence, those statutes as well as OES 138.071 would have been amended. If we were to construe the 1971 amendment to mean otherwise, convicted defendants could prosecute separate appeals from verdicts and judgments, with attendant extra expense and wasted judicial time and procedure.

In the Chappel case the hearing on the appeal, as distinguished from the notice of appeal and filing of briefs, should have awaited the judgment and time for appeal therefrom. However, the record has now been completed with the entry of a judgment sentencing the defendant, and all of the issues except any relating to the sentence have been presented on appeal.

The judgment in McFarland is affirmed, and the order from which appeal was taken in Chappel is affirmed.