State v. Carr

¶1This is one of a series of “Anders”1cases held for this court’s opinion in State v. Horine, 64 Or App 532, 669 P2d 797 (1983). Counsel for the indigent appellant in this criminal case has filed a motion denominated “Motion to Dismiss Appeal,” together with a motion for attorney fees. For the reasons that follow, both motions are denied.

¶2The motion to dismiss the appeal states:

“Appellant … by and through his attorney … moves the Court for an order dismissing the appeal in the above-entitled matter on the grounds and for the reasons[2] that after extensive research into various points it was determined that the issues had previously been decided by other courts and it is believed that our court would rule in a fashion similar to those.”

¶3Treating this motion as it is captioned — i.e., as a motion to dismiss — it is denied. Defendant has not personally joined in it by signing the motion. If, in the alternative, counsel wished (or now wishes) to be relieved as counsel under Anders, his attention is directed to State v. Horine, supra; State v. Kennedy, 64 Or App 556, 669 P2d 807 (1983); and State v. Hyde, 65 Or App 242, 670 P2d 1066 (1983). As those cases — particularly State v. Hyde — make clear, the assertions of appointed counsel here would not be sufficient to relieve him of the obligation to file a brief if defendant wishes to have him do so.

¶4The motion to dismiss this appeal is denied. The motion for an award of attorney fees is premature; it, too, is denied.