Does the Court of Appeals have jurisdiction of the plaintiff's appeal from a circuit court order allowing defendant's motion to suppress evidence, where the plaintiff commenced prosecution in municipal court for violation of the state statute (former ORS 487.540),
A police officer arrested defendant and charged him with the crime of driving while under the influence of intoxicants "in violation of State Statute ORS 487.540." Defendant was cited to appear in the Municipal Court for the City of Lake Oswego. That court has jurisdiction to try state traffic offenses except felonies, ORS 153.565(2) (former ORS 484.030(2)).
Prior to trial defendant moved to suppress certain evidence. The municipal court granted the motion. The plaintiff appealed to the circuit court. Before addressing the issue of Court of Appeals jurisdiction, we must decide whether the circuit court had jurisdiction, for we have a duty to recognize jurisdictional issues on our own motion. See, e.g., Ragnone v. Portland School District No. 1J, 289 Or. 339, 341, 613 P.2d 1052 (1980).
We have held that when a municipal court tries a state traffic offense it is exercising authority as a justice court. Henderson v. Smith, 282 Or. 109, 113, 577 P.2d 504 (1978). At the time the municipal court made its ruling in the case at bar, ORS 157.010 and 157.020 provided that in a criminal action in justice court the "plaintiff" could appeal to circuit court from an order made prior to trial suppressing evidence. At that time ORS 157.020(1) further provided:
It is not clear whether defendant moved anew in the circuit court to suppress the evidence or if the circuit court simply reviewed the municipal court's ruling on the motion filed in the municipal court.
The plaintiff filed a notice of appeal in the Court of Appeals, and the defendant moved to dismiss the appeal on the ground that "[t]he constitutionality of the statute in question is not at issue. The prosecution is not allowed in effect `two appeals,'" citing City of Salem v. Bruner, 299 Or. 262, 702 P.2d 70 (1985), and City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980). The Court of Appeals dismissed the appeal, City of Lake Oswego v. Mylander, 77 Or.App. 310, 713 P.2d 44 (1986), citing Winters as governing.
We allowed the plaintiff's petition for review, which urges that the decision is contrary to the decision in City of Toledo v. Richards, 40 Or.App. 71, 594 P.2d 422 (1979), and the implications of Henderson v. Smith, supra, and that Winters is inapposite.
The Court of Appeals' reliance on City of Klamath Falls v. Winters is misplaced. In that case the charge was violation of city ordinances. The only appeal available beyond circuit court of one convicted of violation was to challenge the constitutionality of the ordinances under ORS 221.360.
Defendants did not make such a challenge. We held that this limit on the right of appeal by defendants beyond circuit court did not violate defendants' right to equal protection under the Fourteenth Amendment to the Constitution of the United States or under Article I, section 20, of the Oregon Constitution. That decision does not address cases involving violation of state law. It does not address appeal by the prosecution.
Neither do we find City of Salem v. Bruner, supra, controlling. There, also, defendant was charged with a violation of a city ordinance and sought to appeal beyond the circuit court level. The Court of Appeals dismissed on the basis of City of Klamath Falls v. Winters, supra, and we affirmed the decision but on different grounds. We held that the defendant had failed to make a record that would permit decision of his claims that the separate statutory systems of appeal established by the statutes were unconstitutional.
That the Court of Appeals cited inapposite authority for its decision to dismiss this appeal, however, is not the decisive factor. The Court of Appeals has only such appellate jurisdiction as is granted by statute. See, e.g., Waybrant v. Bernstein, 294 Or. 650, 653, 661 P.2d 931 (1983). In this case the plaintiff cited in its brief in the Court of Appeals only ORS 138.060(3) for Court of Appeals jurisdiction. The text of that statute grants the right of appeal only to the "state." The only authority
We are convinced by another line of reasoning, however, that plaintiff is entitled to appeal under ORS 138.060(3), which grants to the "state" the right to appeal from an order made before trial suppressing evidence. A "criminal action" is an action by means of which a person is accused and tried for the commission of an offense. ORS 131.005(6). Violation of former ORS 487.540 was an offense; indeed, it was a crime. ORS 131.025 provides:
As noted above, the City of Lake Oswego's municipal court had jurisdiction to try this state traffic offense under ORS 153.565(2). The next subsection, ORS 153.565(3), provides that the city attorney
Here the city attorney did prosecute the action.
We hold that it is the state which is the plaintiff in this criminal action. Styling the City of Lake Oswego as plaintiff is simply a misnomer. The case is, and always has been, "State of Oregon v. Mylander."
Reversed and remanded to the Court of Appeals.
Final Draft and Report, November 1972, p. 4.
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