Opinion · Orlaw Oregon

BURSON v. CUPP, 70 Or. App. 246 (1984)

WILLIAM E. BURSON, Appellant, v. CUPP, Respondent., 688 P.2d 1382 (Or. Ct. App. 1985)

Type: Opinion
Court: Oregon
Jurisdiction: Oregon
Date: 1985-02-20
Topic: general

BURSON v. CUPP, 70 Or. App. 246 (1984) 688 P.2d 1382 WILLIAM E. BURSON, Appellant, v. CUPP, Respondent. 139,863; CA A30759Oregon Court of Appeals.Argued and submitted September 14, 1984 Affirmed October 10, 1984Reconsideration denied January 11, 1985Petition for review denied February 20, 1985 Appeal from Circuit Court, Marion County.

Citator

UpLaw has not yet analyzed BURSON v. CUPP, 70 Or. App. 246 (1984). The absence of a flag is not a finding that it is good law.

BURSON v. CUPP,70 Or. App. 246(1984)

688 P.2d 1382

WILLIAM E. BURSON,Appellant,v. CUPP,Respondent.

139,863; CA A30759

Oregon Court of Appeals.

Argued and submitted September 14, 1984

Affirmed October 10, 1984

Reconsideration denied January 11, 1985

Petition for review denied February 20, 1985

Appeal from Circuit Court, Marion County.

Richard D. Barber, Judge.

Eric E. Johansen, Salem, argued the cause and filed the brief for appellant.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.Page 247

Before Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.

GILLETTE, P. J.

Affirmed.Page 248

GILLETTE, P. J.

Petitioner appeals from dismissal of his petition for relief under the Post-Conviction Hearing Act, ORS138.510-138.680. He asserts that the trial court erred in (1) foreclosing certain issues raised in his petition without a hearing by granting defendant summary judgment when defendant had only moved for partial summary judgment; (2) ruling that he was not denied his constitutional rights because of the manner in which the foreman of the grand jury that indicted him was selected; and (3) in denying him a continuance. We affirm.

Under the peculiar facts of this case, we find petitioner's first assignment to be waived. It is true that the scope of the trial judge's order granting summary judgment exceeded the scope of defendant's motion. However, petitioner did not object to the broader order and, in fact, it was petitioner's counsel who prepared the judgment order.

Petitioner's second assignment is based on the fact that, at the time he was indicted in Multnomah County, it was the practice there for the jury supervisor, rather than a judge, to select the grand jury foreman and alternate foreman. It is clear that this was a task delegated by the court, at least as a matter of practice. We think it equally clear that the delegation of such authority is not a constitutional violation.See State v. Gortmaker,295 Or. 505,516-18,668 P.2d 354(1983),cert denied___ US ___,104 S Ct 1416,79 L Ed 2d 742(1984). The trial court did not err in denying post-conviction relief on this ground.

Finally, we hold that the trial court did not abuse its discretion, and therefore did not err, in refusing petitioner's request for a continuance to obtain a second deposition from a witness already once deposed.

Affirmed.Page 249