Opinion
81-262C; CA A23771
Motion to dismiss appeal; petition for attorney fees filed June 21, 1982 Motion to dismiss denied; petition for attorney fees denied October 26, 1982 Appeal dismissed December 29, 1983 ( 66 Or. App. 974, 677 P.2d 671)
Appeal from Circuit Court, Klamath County.
Donald A. W. Piper, Judge.
Neil D. Smith, Klamath Falls, for motion and petition.
Before Gillette, Presiding Judge, and Warden and Young, Judges.
GILLETTE, P. J.
Motion to dismiss denied; petition for attorney fees denied.
This is one of a series of "Anders" cases held for this court's opinion in State v. Horine, 64 Or. App. 532, 669 P.2d 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.
Anders v. California, 386 U.S. 738, 87 S Ct 1396, 18 L Ed 2d 493 (1967).
The 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 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."
"On the grounds and for the reasons" is one of those pervasive and abrasive redundancies which persists in the legal lexicon, apparently because it either sounds "legalistic," has a pleasing cadence, or both. We do not mean to single out counsel in this case for criticism for his use of the phrase; regretably, virtually everyone uses it. However, this court could live without it — and the practice of law in this state would be better off.
Treating 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 P.2d 807 (1983); and State v. Hyde, 65 Or. App. 242, 670 P.2d 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.
The motion to dismiss this appeal is denied. The motion for an award of attorney fees is premature; it, too, is denied.