Burson v. Cupp

Court of Appeals of Oregon

Burson v. Cupp

688 P.2d 1382, 70 Or. App. 246

CourtCourt of Appeals of Oregon

DecidedOctober 10, 1984

Docket139,863; CA A30759

StatusPublished

This text of 688 P.2d 1382 (Burson v. Cupp) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burson v. Cupp, 688 P.2d 1382, 70 Or. App. 246 (Or. Ct. App. 1984).

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Opinion

GILLETTE, P. J.

Petitioner appeals from dismissal of his petition for relief under the Post-Conviction Hearing Act, ORS 138.510-138.680. 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 P2d 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.

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GILLETTE, P. J.

Petitioner appeals from dismissal of his petition for relief under the Post-Conviction Hearing Act, ORS 138.510-138.680. 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 P2d 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.

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688 P.2d 1382, 70 Or. App. 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burson-v-cupp-orctapp-1984.

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