Hosley v. Cupp , 39 Or. App. 451 ( 1979 )

SCHWAB, C. J.

In this post-conviction proceeding petitioner appeals from an order sustaining a demurrer to and dismissing his petition for relief after he failed to plead further within the time allowed by the court. The petition, apparently prepared and filed on the petitioner’s behalf by the state Public Defender, states in pertinent part:

"VI.

"On or about July 5,1977, petitioner contacted the Office of the State Public Defender in Salem, Oregon and requested that the State Public Defender file a notice of appeal from his conviction set forth in paragraph V.

"VH.

"The Office of the State Public Defender, having ample time and opportunity to have filed a notice of appeal as requested by petitioner, negligently failed to file the notice timely.”

Nowhere does the petition state that the petitioner sought the appointment of counsel on appeal as required by ORS 138.500, or that the Public Defender was in fact appointed, or that any attorney in that office undertook to represent petitioner.

Affirmed.