VASQUEZ v. COURTNEY, 272 Or. 477 (1975)

537 P.2d 536

Oregon Supreme Court.Argued June 5, ____.
Reversed July 3, 1975.

Page 478

IN BANC[*]

Appeal from Circuit Court, Yamhill County, KURT C. ROSSMAN, Judge.

Harold W. Adams, Salem, argued the cause and filed a brief for appellant.

Edward H. Warren, Portland, argued the cause for respondents. With him on the brief were Milton R. Smith, and Hershiser, Mitchell Warren, Portland.

REVERSED.

HOWELL, J.

Plaintiff filed this action for libel alleging the defendants made defamatory statements concerning plaintiff to a probation officer making a pre-sentence investigation of plaintiff. The defendants moved to dismiss the complaint on the ground that plaintiff was precluded from bringing the suit by ORS 137.240
which provides that a conviction of a felony suspends the civil rights of the person convicted.[1] The court allowed the motion and plaintiff appeals. We reverse.

On December 11, 1973, plaintiff was found guilty by a jury of criminal activity in drugs. A pre-sentence investigation was ordered. Later, the plaintiff was charged with a second offense and entered a plea

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of guilty on March 25, 1974. On June 28, 1974, plaintiff filed his libel action. Judgments were entered on both criminal charges on July 2, 1974, and plaintiff was sentenced to the Corrections Division for consecutive terms of five years and two years.

The defendants contend that the plaintiff had been “convicted” of a felony at the time the libel action was filed and therefore his civil rights were suspended and plaintiff could not bring this action. The plaintiff contends that the “action was started before the person’s conviction” and therefore plaintiff is not precluded from maintaining his action.

The issue of whether plaintiff’s action is barred by ORS 137.240 turns upon whether plaintiff was “convicted” before a judgment on the criminal charges had been entered. The definition of “conviction” as it relates to the effect of a felony conviction on an individual’s civil rights is contained in ORS 137.230:

“As used in ORS 137.230 to 137.260, `conviction’ or `convicted’ means an adjudication of guilt upon a verdict or finding entered in a criminal proceeding in a court of competent jurisdiction.”

It is clear that the statute contemplates, first, a finding of guilt by a jury verdict or a finding by the court without a jury and, second, an “adjudication” based upon such finding. To “adjudge” is defined as “to pass on judicially, to decide, settle, or decree, or to sentence or condemn.” An “adjudication” is defined as “the giving or pronouncing a judgment or decree in a cause.” Black’s Law Dictionary (Rev 4th Ed 1968). A “judgment” in a criminal case constitutes a judicial determination of guilt based on a verdict or plea of guilty and imposes a penalty for the transgression committed by the defendant. People v. LaSasso, 182 Misc. 538, 44 NYS2d 93
(1943).

The word “conviction” has two accepted meanings.

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The first refers to a finding of guilt by a plea or verdict. The second, more technical, meaning refers to the final judgment entered on a plea or verdict of guilt. In the latter case conviction has not been accomplished until the judgment is made by the court. Daughtrey v. State, 46 Fla 109, 35 So. 397
(1903); Levin v. Carpenter, 332 S.W.2d 862, 79 ALR2d 859 (Mo 1960); Ex parte White, 28 Okla. Cr. 180, 230 P. 522 (1924).

Civil disabilities are considered penal in nature and are strictly construed. Hayashi v. Lorenz, 42 Cal.2d 848, 271 P.2d 18 (1954). Where civil penalties and disabilities are involved as in the instant case, a large majority of jurisdictions accept the technical meaning of “conviction” and hold that conviction takes place only after a determination of guilt and a pronouncement of the judgment of the court. Truchon v. Toomey, 116 Cal.App.2d 736, 254 P.2d 638, 36 ALR2d 1230 (1953); Faunce v. People, 51 Ill. 311 (1869); Levin v. Carpenter, supra; People v. Fabian, 192 N.Y. 443, 85 N.E. 672
(1908); Commonwealth v. Reading, 336 Pa. 165, 6 A.2d 776 (1939); Note, 22 So Cal L Rev 476 (1949).[2] But see United States v.

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Watkinds, 7 Sawy 85, 6 F 152 (CCD Or 1881). We agree with the majority view.

As plaintiff’s action was filed before a judgment had been entered, the trial court erred in granting a dismissal.

Reversed.[3]

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