dissenting.
The majority finds jurisdiction because it wants it. The sole source of our jurisdiction, however, is statutory. It is not judicial whim. We have no authority to act beyond our statutory jurisdiction.
Appellate jurisdiction in this case is regulated in clear and unambiguous terms by ORS 138.050, which provides:
"A defendant who has pleaded guilty * * * may take an appeal from a judgment on conviction where it imposes a sentence that is cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the offense. * * * On such appeal, the appellate court shall only consider the question whether an excessive, cruel or unusual punishment has been imposed. If in the judgment of the appellate court the punishment is excessive, unusual or cruel, it shall direct the *910court from which the appeal is taken to impose the punishment which should be administered.”
This is such an appeal. The majority does not question the jurisdiction of the trial court over the case or the defendant. The guilty plea and the judgment exist. They may be voidable, but they are not void. Consequently, ORS 138.050 controls and for us to to reach the error on appeal is to exceed our jurisdiction.
The reasoning of the majority is contained in one wrong sentence, one irrelevant sentence and one correct sentence. The wrong sentence purports to tell us why this case is not an appeal from a judgment based on a guilty plea:
"* * * * Here, however, defendant seeks a reversal of his 'conviction’ because, as a matter of law, there has been no guilty plea and no conviction. * * *”
If the conviction is void, ("as a matter of law * * * no guilty plea and no conviction,”) then the remedy is habeas corpus,1 not direct appeal for the simple reason that if there is "no conviction” there is nothing for defendant to appeal from. Moreover, if, as the majority holds, this is not an appeal by a "defendant who has pleaded guilty * * * from a judgment on conviction” subject to ORS 138.050, then the majority has failed to tell us what else it is.
The irrelevant sentence is:
"* * * In Debolt v. Cupp, 19 Or App 545, 553, 528 P2d 601 (1974), we assumed, without deciding, that when a procedural sentencing issue is a purely legal *911one, and the record is sufficient to raise it, the legal issue may be raised either on appeal or in a post-conviction proceeding.”
Citing dicta from DeBolt v. Cupp vasty make the majority opinion resemble an authoritative opinion, but it does not expand ORS 138.050.
The majority’s correct sentence is:
"The record here is complete; no evidentiary hearing is required, and the question is solely a legal one as to the effect of a guilty plea accepted contrary to the mandate of ORS 135.380(2). * * *” (Emphasis added.)
The glaring, indisputable error is that the question of the "effect of a guilty plea” is different than "the question of whether an excessive, cruel or unusual punishment has been imposed” to which ORS 138.050 specifically limits our jurisdiction.
I join in the majority’s desire to reach the merits because an error has obviously occurred. Had we jurisdiction, I would vote with the majority, but we do not. The greater error, however, is for a statutorily created court to assume the role of rulers by assuming jurisdiction by fiat where the legislature has expressly limited it. This is not to say that the defendant necessarily has no remedy — only that, if so, direct appeal is not it. Indeed, it is likely that this matter would have been long since resolved had there been a motion in the trial court instead of or prior to — and it seems automatic these days — an appeal.
Schwab, Chief Judge, and Gillette, Judgé, join in this dissent.ORS 34.610(1) and (3) provides:
"If it appears on the return [to the writ of habeas corpus] that the prisoner is in custody by virtue of an order or civil process of any court legally constituted, or issued by an officer in the course of judicial proceedings before him, authorized by law, such prisoner shall be discharged only if one of the following cases exists:
"(1) The jurisdiction of the court or officer has been exceeded, either as to matter, place, sum or person.
* * * *
"(3) The order or process is defective in some matter of substance required by law, rendering the same void.”