US Laws, Codes, Statutes & Cases

Chapter 138 — Appeals; Post-Conviction Relief

 

2007 EDITION

 

APPEALS; POST-CONVICTION RELIEF

 

PROCEDURE IN CRIMINAL MATTERS GENERALLY

 

APPEALS

 

138.005     Definitions for ORS 138.010 to 138.310

 

138.010     Mode of review; abolition of writs of error and certiorari

 

138.012     Sentence of death; automatic and direct review by Supreme Court

 

138.020     Who may appeal

 

138.030     Parties designated “appellant” and “respondent”; title of action

 

138.040     Appeal by defendant generally; reviewable matters

 

138.050     Appeal from sentence on plea of guilty or no contest

 

138.053     Judgments and orders that are subject to appeal

 

138.057     Appeal from judgment involving violation

 

138.060     Appeal by state

 

138.071     Time within which appeal must be taken

 

138.081     Service and filing of notice of appeal

 

138.083     Retention of authority by trial court for certain purposes

 

138.090     Signature to notice of appeal

 

138.110     Service of notice of appeal on defendant or attorney by publication in certain cases

 

138.120     When appeal is perfected in case of service of notice of appeal by publication

 

138.135     Defendant’s appeal or petition for review as stay of sentence

 

138.145     Delivery of defendant under sentence of imprisonment to intake center

 

138.160     Appeal by state as stay of judgment or order; release

 

138.185     Transmission of record to Court of Appeals; statutes applicable to appeal to Court of Appeals

 

138.210     Necessity of appearance of appellant

 

138.220     Scope of review

 

138.222     Scope of review of sentence imposed for felony committed on or after November 1, 1989

 

138.225     Summary affirmation; when allowed

 

138.227     Vacation of judgment and remand; when allowed

 

138.230     Rulings in discretion of court and technical defects as grounds for reversal

 

138.240     Judgments appellate court may give

 

138.250     New trial to be in court below; reversal without new trial

 

138.255     Court of Appeals certification of appeal to Supreme Court in lieu of disposition; party request for Supreme Court review

 

138.261     Time within which certain appeals must be decided

 

138.300     County’s liability for costs on appeal in criminal action

 

138.310     Notice to court below when public defense services executive director certifies costs, expenses or compensation

 

138.480     Public Defense Services Commission to provide representation for prisoner in proceeding before appellate court

 

138.500     Appointment of counsel and furnishing of transcript for appellant without funds; compensation

 

138.504     Waiver of counsel; appointment of legal advisor

 

POST-CONVICTION RELIEF

 

138.510     Persons who may file petition for relief; time limit

 

138.520     Relief which court may grant

 

138.525     Dismissal of meritless petition

 

138.527     Frivolous petition or response; attorney fees

 

138.530     When relief must be granted; executive clemency or pardon powers and original jurisdiction of Supreme Court in habeas corpus not affected

 

138.540     Petition for relief as exclusive remedy for challenging conviction; when petition may not be filed; abolition or availability of other remedies

 

138.550     Availability of relief as affected by prior judicial proceedings

 

138.560     Procedure upon filing petition for relief; filing fee; venue and transfer of proceedings; surcharge

 

138.570     Who shall be named as defendant; counsel for defendant

 

138.580     Petition

 

138.590     Petitioner may proceed as a financially eligible person

 

138.610     Pleadings

 

138.620     Hearing

 

138.622     Appearance by communication device

 

138.625     Victim testimony

 

138.630     Evidence of events occurring at trial of petitioner

 

138.640     Judgment; enforcement

 

138.650     Appeal

 

138.660     Summary affirmation of judgment; dismissal of appeal

 

138.670     Admissibility, at new trial, of testimony of witness at first trial

 

138.680     Short title

 

138.686     Automatic stay of sentence of death for federal appeal and state post-conviction relief

 

POST-CONVICTION MOTION FOR DNA TESTING

 

138.690     Motion

 

138.692     Affidavit; order; costs

 

138.694     Appointed counsel

 

138.696     Test results

 

138.698     Effect of setting aside conviction on plea agreement

 

APPEALS

 

      138.005 Definitions for ORS 138.010 to 138.310. As used in ORS 138.010 to 138.310, unless the context requires otherwise, the terms defined in ORS 19.005 have the meanings set forth in ORS 19.005. [1959 c.558 §35]

 

      138.010 Mode of review; abolition of writs of error and certiorari. Writs of error and of certiorari in criminal actions are abolished. The only mode of reviewing a judgment or order in a criminal action is that prescribed by ORS 138.010 to 138.310.

 

      138.012 Sentence of death; automatic and direct review by Supreme Court. (1) The judgment of conviction and sentence of death entered under ORS 163.150 (1)(f) is subject to automatic and direct review by the Supreme Court. The review by the Supreme Court has priority over all other cases and shall be heard in accordance with rules adopted by the Supreme Court.

      (2) Notwithstanding ORS 163.150 (1)(a), after automatic and direct review of a conviction and sentence of death the following apply:

      (a) If a reviewing court finds prejudicial error in the sentencing proceeding only, the court may set aside the sentence of death and remand the case to the trial court. No error in the sentencing proceeding results in reversal of the defendant’s conviction for aggravated murder. Upon remand and at the election of the state, the trial court shall either:

      (A) Sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105 (1)(c); or

      (B) Impanel a new sentencing jury for the purpose of conducting a new sentencing proceeding to determine if the defendant should be sentenced to:

      (i) Death;

      (ii) Imprisonment for life without the possibility of release or parole as provided in ORS 163.105 (1)(b); or

      (iii) Imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105 (1)(c).

      (b) The new sentencing proceeding is governed by the provisions of ORS 163.150 (1), (2), (3) and (5). A transcript of all testimony and all exhibits and other evidence properly admitted in the prior trial and sentencing proceeding are admissible in the new sentencing proceeding. Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence.

      (c) The provisions of this subsection are procedural and apply to any defendant sentenced to death after December 6, 1984. [1999 c.1055 §5; 2001 c.306 §2]

 

      Note: 138.012 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 138 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      138.020 Who may appeal. Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases prescribed in ORS 138.010 to 138.310, and not otherwise.

 

      138.030 Parties designated “appellant” and “respondent”; title of action. The party appealing is known as the appellant and the adverse party as the respondent; but the title of the action is not changed in consequence of the appeal.

 

      138.040 Appeal by defendant generally; reviewable matters. Except as provided under ORS 138.050, the defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 in a circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060 (1)(c) or (2)(a). The following apply upon such appeal or cross-appeal:

      (1) The appellate court may review:

      (a) Any decision of the court in an intermediate order or proceeding.

      (b) Any disposition described under ORS 138.053 as to whether it:

      (A) Exceeds the maximum allowable by law; or

      (B) Is unconstitutionally cruel and unusual.

      (2) If the appellate court determines the disposition imposed exceeds the maximum allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the disposition that should be imposed. [Amended by 1959 c.558 §36; 1963 c.207 §1; 1969 c.198 §62; 1971 c.565 §19; 1977 c.372 §13; 1977 c.752 §1; 1985 c.348 §1; 1989 c.849 §4; 2001 c.870 §6]

 

      138.050 Appeal from sentence on plea of guilty or no contest. (1) Except as otherwise provided in ORS 135.335, a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition:

      (a) Exceeds the maximum allowable by law; or

      (b) Is unconstitutionally cruel and unusual.

      (2) If the judgment or order described under ORS 138.053 is in the:

      (a) Circuit court, the appeal shall be taken to the Court of Appeals.

      (b) Justice court or municipal court, the appeal shall be taken to the circuit court for the county.

      (3) On appeal under subsection (1) of this section, the appellate court shall consider only whether the disposition:

      (a) Exceeds the maximum allowable by law; or

      (b) Is unconstitutionally cruel and unusual.

      (4) If the appellate court determines the disposition imposed does exceed the maximum allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the disposition that should be imposed. [Amended by 1969 c.198 §63; 1973 c.836 §275a; 1975 c.611 §23; 1977 c.372 §14; 1985 c.342 §20; 1985 c.348 §2; 1989 c.849 §5; 1995 c.658 §78; 1999 c.134 §3; 1999 c.788 §47; 2001 c.644 §1]

 

      138.053 Judgments and orders that are subject to appeal. (1) A judgment, or order of a court, if the order is imposed after judgment, is subject to the appeal provisions and limitations on review under ORS 138.040 and 138.050 if the disposition includes any of the following:

      (a) Imposition of a sentence on conviction.

      (b) Suspension of imposition or execution of any part of a sentence.

      (c) Extension of a period of probation.

      (d) Imposition or modification of a condition of probation or of sentence suspension.

      (e) Imposition or execution of a sentence upon revocation of probation or sentence suspension.

      (2) A disposition described under subsection (1) of this section is not subject to appeal after the expiration of the time specified in ORS 138.071 for appealing from the judgment or order imposing it, except as may be provided in ORS 138.510 to 138.680.

      (3) Notwithstanding ORS 138.040 and 138.050, upon an appeal from a judgment or order described in subsection (1)(c) to (e) of this section, the appellate court may review the order that extended the period of the defendant’s probation, imposed or modified a condition of the defendant’s probation or sentence suspension or revoked the defendant’s probation or sentence suspension if the defendant shows a colorable claim of error in the proceeding from which the appeal is taken. [1989 c.849 §3; 1993 c.14 §16; 2001 c.644 §2; 2003 c.737 §101]

 

      138.057 Appeal from judgment involving violation. (1)(a) If a justice court or municipal court has become a court of record under ORS 51.025 or 221.342, an appeal from a judgment involving a violation shall be as provided in ORS chapter 19 for appeals from judgments entered by circuit courts, except that the standard of review is the same as for an appeal from a judgment in a proceeding involving a misdemeanor or felony. If a justice court or municipal court has not become a court of record under ORS 51.025 or 221.342, the appeal from a judgment involving a violation entered by the justice court or municipal court may be taken to the circuit court for the county in which the justice court or municipal court is located. An appeal to a circuit court must be taken in the manner provided in this subsection.

      (b) Within 30 days after the entry of the judgment by the justice court or municipal court, a party who wishes to appeal the decision must serve a copy of the notice of appeal on the adverse party and must file the original notice of appeal with the justice court or municipal court along with proof of service on the adverse party or an acknowledgment of service signed by the adverse party.

      (c) If the appeal is made by the defendant from the decision of a municipal court, the copy of the notice of appeal must be served on the city attorney. If the appeal is made by the defendant from a decision in a justice court, the copy of the notice of appeal must be served on the district attorney for the county.

      (d) No undertaking shall be required of the party filing a notice of appeal under the provisions of this subsection.

      (e) Upon filing of the notice of appeal, the justice court or municipal court shall forward all files relating to the case to the circuit court to which the appeal is taken.

      (f) The circuit court shall treat a matter appealed under this subsection as though the case had been originally filed with the circuit court and shall try the case anew, disregarding any irregularity or imperfection in the proceedings in the justice court or municipal court.

      (g) Upon entry of a judgment in the matter, the judgment may be appealed as provided in subsection (2) of this section.

      (2) Subject to the provisions of this subsection, an appeal from a judgment involving a violation entered by a circuit court may be taken as provided in ORS chapter 19.

      (a) For the purpose of meeting the requirements imposed by ORS 19.240, the copy of the notice of appeal must be served on:

      (A) The city attorney, if the appeal is made by the defendant from a decision initially made in a municipal court.

      (B) The district attorney for the county, if the appeal is made by the defendant from a decision initially made in a justice court.

      (b) Notwithstanding ORS 19.270, timely service on the city attorney or district attorney under the provisions of this subsection is not jurisdictional and the Court of Appeals may extend the time for that service.

      (c) Notwithstanding any provision of ORS chapter 19, an undertaking on appeal is not required for an appeal from a judgment involving a violation.

      (d) The filing of a notice of an appeal from a judgment involving a violation does not act to automatically stay the judgment.

      (e) The standard of review for an appeal under this subsection is the same as for an appeal from a judgment in a proceeding involving a misdemeanor or felony.

      (3) In any case in which only violations are charged, the state may not appeal from an order dismissing the case that is entered by reason of a police officer’s failure to appear at the trial of the matter. [1993 c.379 §5; 1995 c.658 §79; 1997 c.389 §12; 1999 c.682 §11; 2005 c.266 §2]

 

      Note: 138.057 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 138 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      138.060 Appeal by state. (1) The state may take an appeal from the circuit court to the Court of Appeals from:

      (a) An order made prior to trial dismissing or setting aside the accusatory instrument;

      (b) An order arresting the judgment;

      (c) An order made prior to trial suppressing evidence;

      (d) An order made prior to trial for the return or restoration of things seized;

      (e) A judgment of conviction based on the sentence as provided in ORS 138.222;

      (f) An order in a probation revocation hearing finding that a defendant who was sentenced to probation under ORS 137.712 has not violated a condition of probation by committing a new crime;

      (g) An order made after a guilty finding dismissing or setting aside the accusatory instrument;

      (h) An order granting a new trial; or

      (i) An order dismissing an accusatory instrument under ORS 136.130.

      (2) Notwithstanding subsection (1) of this section, when the state chooses to appeal from an order listed in paragraph (a) or (b) of this subsection, the state shall take the appeal from the circuit court to the Supreme Court if the defendant is charged with murder or aggravated murder. The orders to which this subsection applies are:

      (a) An order made prior to trial suppressing evidence; and

      (b) An order made prior to trial dismissing or setting aside the accusatory instrument.

      (3) In an appeal by the state under subsection (2) of this section, the Supreme Court shall issue its decision no later than one year after the date of oral argument or, if the appeal is not orally argued, the date that the State Court Administrator delivers the briefs to the Supreme Court for decision. Failure of the Supreme Court to issue a decision within one year is not a ground for dismissal of the appeal. [Amended by 1963 c.385 §1; 1969 c.198 §64; 1969 c.529 §1; 1971 c.644 §1; 1973 c.836 §276; 1977 c.752 §2; 1989 c.790 §21a; 1997 c.852 §11; 1999 c.946 §2; 2001 c.870 §4]

 

      138.070 [Repealed by 1971 c.565 §20 (138.071 enacted in lieu of 138.070)]

 

      138.071 Time within which appeal must be taken. (1) Except as provided in this section, a notice of appeal must be served and filed not later than 30 days after the judgment or order appealed from was entered in the register.

      (2) If a motion for new trial or motion in arrest of judgment is served and filed a notice of appeal must be served and filed within 30 days from the earlier of the following dates:

      (a) The date of entry of the order disposing of the motion; or

      (b) The date on which the motion is deemed denied.

      (3) A defendant cross-appealing must serve and file the notice of cross-appeal within 10 days of the expiration of the time allowed in subsection (1) of this section.

      (4) If the trial court enters a corrected or a supplemental judgment under ORS 138.083, a notice of appeal from the corrected or supplemental judgment must be filed not later than 30 days after the defendant receives notice that the judgment has been entered.

      (5)(a) Upon motion of a defendant, the Court of Appeals shall grant the defendant leave to file a notice of appeal after the time limits described in subsections (1) to (4) of this section if:

      (A) The defendant, by clear and convincing evidence, shows that the failure to file a timely notice of appeal is not attributable to the defendant personally; and

      (B) The defendant shows a colorable claim of error in the proceeding from which the appeal is taken.

      (b) A defendant is not entitled to relief under this subsection for failure to file timely notice of cross-appeal when the state appeals pursuant to ORS 138.060 (1)(c) or (2)(a).

      (c) The request for leave to file a notice of appeal after the time limits prescribed in subsections (1) to (3) of this section must be filed no later than 90 days after entry of the order or judgment being appealed. The request for leave to file a notice of appeal after the time limit prescribed in subsection (4) of this section must be filed no later than 90 days after the defendant receives notice that the judgment has been entered. A request for leave under this subsection must be accompanied by the notice of appeal, may be filed by mail and is deemed filed on the date of mailing if the request is mailed as provided in ORS 19.260.

      (d) The court shall not grant relief under this subsection unless the state has notice and opportunity to respond to the defendant’s request for relief.

      (e) The denial of a motion under paragraph (a) of this subsection is a bar to post-conviction relief under ORS 138.510 to 138.680 on the same ground, unless the court provides otherwise. [1971 c.565 §21 (enacted in lieu of 138.070); 1977 c.752 §3; 1985 c.282 §1; 1985 c.734 §§17,17a; 1987 c.852 §1; 2001 c.870 §7; 2003 c.288 §2; 2007 c.547 §2]

 

      138.080 [Amended by 1959 c.558 §37; 1969 c.198 §65; 1971 c.193 §28; repealed by 1971 c.565 §22 (138.081 enacted in lieu of 138.080)]

 

      138.081 Service and filing of notice of appeal. (1) An appeal shall be taken by causing a notice of appeal in the form prescribed by ORS 19.250 to be served:

      (a)(A) On the district attorney for the county in which the judgment is entered, when the defendant appeals, or if the appeal is under ORS 221.360 on the plaintiff’s attorney; or

      (B) On the attorney of record for the defendant, or if the defendant has no attorney of record, on the defendant, when the state appeals; and

      (b) On the trial court transcript coordinator if a transcript is required in connection with the appeal; and

      (c) On the clerk of the trial court.

      (2)(a) The original of the notice shall be filed with the clerk of the court to which the appeal is made.

      (b) Proof of service of the notice of appeal shall be indorsed on or affixed to the original filed with the Court of Appeals or the Supreme Court. [1971 c.565 §23 (enacted in lieu of 138.080); 1985 c.734 §18; 1997 c.389 §9; 2001 c.870 §8]

 

      138.083 Retention of authority by trial court for certain purposes. (1)(a) The sentencing court shall retain authority irrespective of any notice of appeal after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors or to delete or modify any erroneous term in the judgment. The court may correct the judgment either on the motion of one of the parties or on the court’s own motion after written notice to all the parties.

      (b) If a sentencing court enters a corrected judgment under this subsection while an appeal of the judgment is pending, the court shall immediately forward a copy of the corrected judgment to the appellate court. Any modification of the appeal necessitated by the corrected judgment shall be made in the manner specified by rules adopted by the appellate court.

      (2)(a) A judgment that orders payment of restitution but does not specify the amount of restitution imposed is final for the purpose of appealing the judgment.

      (b) Notwithstanding the filing of a notice of appeal, the sentencing court retains authority to determine the amount of restitution and to enter a supplemental judgment to specify the amount and terms of restitution.

      (c) If a sentencing court enters a supplemental judgment under this subsection while an appeal of the judgment of conviction is pending, the court shall immediately forward a copy of the supplemental judgment to the appellate court. Any modification of the appeal necessitated by the supplemental judgment may be made in the manner specified by rules adopted by the appellate court. [1989 c.790 §20; 1995 c.109 §1; 1997 c.389 §2; 2003 c.576 §165; 2007 c.547 §3]

 

      138.090 Signature to notice of appeal. When the state takes an appeal, the notice of appeal shall be signed by the district attorney for the county or by the Attorney General. When the defendant takes an appeal, the notice of appeal shall be signed by the defendant or an attorney of the court for the defendant. [Amended by 1975 c.119 §1]

 

      138.100 [Amended by 1959 c.558 §38; 1961 c.101 §1; repealed by 1971 c.565 §1]

 

      138.110 Service of notice of appeal on defendant or attorney by publication in certain cases. If, after due diligence, the service cannot be made as directed in ORS 138.081 (1)(a)(B), the court or judge thereof from which the appeal is sought to be taken, upon proof thereof, may make an order for the publication of the notice of appeal in such newspaper and for such time as the court or judge deems proper. [Amended by 1963 c.324 §1; 1971 c.565 §24]

 

      138.120 When appeal is perfected in case of service of notice of appeal by publication. At the expiration of the time appointed for the publication, on filing an affidavit thereof with the clerk, the appeal becomes perfected.

 

      138.130 [Repealed by 1963 c.155 §1 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150)]

 

      138.135 Defendant’s appeal or petition for review as stay of sentence. (1) A sentence of confinement shall be stayed if an appeal is taken and the defendant elects not to commence service of the sentence or is released on security under ORS 135.230 to 135.290. If a defendant is not released on security and elects not to commence service of the sentence pending appeal, the defendant shall be held in custody at the institution designated in the judgment without execution of sentence, except as provided in ORS 138.145.

      (2) A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the circuit court, the Court of Appeals, or by the Supreme Court upon such terms as the court deems proper. The court may require the defendant, pending appeal, to deposit the whole or any part of the fine and costs with the clerk of the circuit court, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating the assets of the defendant.

      (3) If a petition for review by the Supreme Court is filed, any stay shall remain in effect pending a final disposition of the cause, unless otherwise ordered by the Supreme Court. [1963 c.155 §2 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150); 1967 c.372 §5; 1969 c.198 §66; 1977 c.752 §4; 1999 c.1051 §257]

 

      138.140 [Amended by 1953 c.99 §2; 1955 c.660 §19; repealed by 1963 c.155 §1 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150)]

 

      138.145 Delivery of defendant under sentence of imprisonment to intake center. If the confinement designated by the court is the custody of the Department of Corrections, the defendant may be taken to a designated intake center during normal business hours unless prior arrangements have been made with the department. To the extent possible, the county taking a defendant to a designated intake center shall notify the department one business day prior to the defendant’s arrival. The county may not take the defendant to a designated intake center if the court has ordered the retention of the defendant at the place of original custody for the period of time deemed necessary by the court for preparation of an appeal. [1963 c.155 §3 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150); 1973 c.836 §277; 1987 c.320 §43; 2003 c.458 §1]

 

      138.150 [Repealed by 1963 c.155 §1 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150)]

 

      138.160 Appeal by state as stay of judgment or order; release. An appeal taken by the state stays the effect of the judgment or order in favor of the defendant, so that the release agreement and, if applicable, the security for release, is held for the appearance and surrender of the defendant until the final determination of the appeal and the proceedings consequent thereon, if any; but if the defendant is in custody, the defendant may be released by the court subject to ORS 135.230 to 135.290, pending the appeal. [Amended by 1959 c.638 §20; 1973 c.836 §278]

 

      138.170 [Repealed by 1959 c.638 §26]

 

      138.180 [Repealed by 1959 c.558 §51]

 

      138.185 Transmission of record to Court of Appeals; statutes applicable to appeal to Court of Appeals. (1) In an appeal to the Court of Appeals, when the notice of appeal is filed, or when the appeal is perfected upon publication of notice as provided in ORS 138.120, the record in the trial court shall be prepared and transmitted to the State Court Administrator, at Salem, in the manner and within the time prescribed in ORS chapter 19.

      (2) The provisions of ORS 19.250, 19.260, 19.270, 19.385, 19.390, 19.435, 19.450 and 19.510 and the provisions in ORS 19.425 authorizing review of intermediate orders and, if the defendant is the appellant, the provisions of ORS 19.420 (3) shall apply to appeals to the Court of Appeals. [1959 c.558 §39; 1969 c.198 §67; 1971 c.193 §29; 1971 c.565 §25; 1985 c.734 §19; 1987 c.852 §2; 1997 c.389 §26]

 

      138.190 [Repealed by 1959 c.558 §51]

 

      138.200 [Repealed by 1959 c.558 §51]

 

      138.210 Necessity of appearance of appellant. If the appellant fails to appear in the appellate court, judgment of affirmance shall be given as a matter of course; but the defendant need not personally appear in the appellate court.

 

      138.220 Scope of review. Upon an appeal, the judgment or order appealed from can be reviewed only as to questions of law appearing upon the record. [Amended by 1959 c.558 §40]

 

      138.222 Scope of review of sentence imposed for felony committed on or after November 1, 1989. (1) Notwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a felony committed on or after November 1, 1989, may be reviewed only as provided by this section.

      (2) Except as otherwise provided in subsection (4)(c) of this section, on appeal from a judgment of conviction entered for a felony committed on or after November 1, 1989, the appellate court may not review:

      (a) Any sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.

      (b) A sentence of probation when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.

      (c) A sentence of imprisonment when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.

      (d) Any sentence resulting from a stipulated sentencing agreement between the state and the defendant which the sentencing court approves on the record.

      (e) Except as authorized in subsections (3) and (4) of this section, any other issue related to sentencing.

      (3) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission, sentence review is limited to whether the sentencing court’s findings of fact and reasons justifying a departure from the sentence prescribed by the rules of the Oregon Criminal Justice Commission:

      (a) Are supported by the evidence in the record; and

      (b) Constitute substantial and compelling reasons for departure.

      (4) In any appeal, the appellate court may review a claim that:

      (a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence;

      (b) The sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes; or

      (c) The sentencing court erred in failing to impose a minimum sentence that is prescribed by ORS 137.700 or 137.707.

      (5)(a) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing. If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed an error that requires resentencing, the appellate court shall remand the entire case for resentencing. The sentencing court may impose a new sentence for any conviction in the remanded case.

      (b) If the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts.

      (6) The appellate court shall issue a written opinion whenever the judgment of the sentencing court is reversed and may issue a written opinion in any other case when the appellate court believes that a written opinion will provide guidance to sentencing judges and others in implementing the sentencing guidelines adopted by the Oregon Criminal Justice Commission provided that the appellate courts may provide by rule for summary disposition of cases arising under this section when no substantial question is presented by the appeal.

      (7) Either the state or the defendant may appeal a judgment of conviction based on the sentence for a felony committed on or after November 1, 1989, to the Court of Appeals subject to the limitations of chapter 790, Oregon Laws 1989. The defendant may appeal under this subsection only upon showing a colorable claim of error in a proceeding if the appeal is from a proceeding in which:

      (a) A sentence was entered subsequent to a plea of guilty or no contest;

      (b) Probation was revoked, the period of probation was extended, a new condition of probation was imposed, an existing condition of probation was modified or a sentence suspension was revoked; or

      (c) A sentence was entered subsequent to a resentencing ordered by an appellate court or a post-conviction relief court. [1989 c.790 §21; 1993 c.692 §2; 1993 c.698 §1; 1997 c.852 §9; 2001 c.644 §3; 2003 c.737 §102; 2005 c.563 §1]

 

      Note: Legislative Counsel has substituted “chapter 790, Oregon Laws 1989,” for the words “this Act” in section 21, chapter 790, Oregon Laws 1989, compiled as 138.222. Specific ORS references have not been substituted, pursuant to 173.160. These sections may be determined by referring to the 1989 Comparative Section Table located in Volume 20 of ORS.

 

      138.225 Summary affirmation; when allowed. In reviewing the judgment of any court under ORS 138.010 to 138.310, the Court of Appeals, on its own motion or on the motion of the respondent, may summarily affirm, without oral argument, the judgment after submission of the appellant’s brief and without submission of the respondent’s brief if the court finds that no substantial question of law is presented by the appeal. Notwithstanding ORS 2.570, the Chief Judge of the Court of Appeals may deny or, if the petitioner does not oppose the motion, grant a respondent’s motion for summary affirmation. A dismissal of appeal under this section constitutes a decision upon the merits of the appeal. [1995 c.295 §2]

 

      138.227 Vacation of judgment and remand; when allowed. (1) Upon joint motion of the parties to an appeal in a criminal action, the court may vacate the judgment or order from which the appeal was taken and remand the matter to the trial court to reconsider the judgment or order, or any order entered by the trial court. Upon remand, the trial court shall have jurisdiction to enter a revised judgment or order.

      (2) After entry of a modified judgment or order on reconsideration, or upon reentry of the original judgment or order, either party may appeal in the same time and manner as an appeal from the original judgment or order. [1995 c.295 §3]

 

      138.230 Rulings in discretion of court and technical defects as grounds for reversal. After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties.

 

      138.240 Judgments appellate court may give. The appellate court may reverse, affirm or modify the judgment or order appealed from and shall, if necessary or proper, order a new trial.

 

      138.250 New trial to be in court below; reversal without new trial. When a new trial is ordered, it shall be directed to be had in the court below; and if a judgment against a defendant is reversed without ordering a new trial, the appellate court shall direct, if the defendant is in custody, that the defendant be discharged therefrom, or if the defendant has been released, that the release agreement be exonerated, or if a security release has been entered into, that the security be refunded to the defendant or the sureties of the defendant. [Amended by 1973 c.836 §279]

 

      138.255 Court of Appeals certification of appeal to Supreme Court in lieu of disposition; party request for Supreme Court review. (1) An appeal to the Court of Appeals may be certified to the Supreme Court, and the Supreme Court may accept or deny acceptance of the certified appeal, as provided in ORS 19.405.

      (2) At any time before the State Court Administrator sends notice to the parties of the date of oral argument or, if the case is not orally argued, the date that the State Court Administrator delivers the briefs to the Court of Appeals for decision, a party may request the Supreme Court to take and decide an appeal taken by the state under ORS 138.060 (1). In determining whether to accept an appeal under this subsection, the Supreme Court shall consider, in addition to other factors that the Supreme Court deems appropriate:

      (a) Whether the defendant is charged with a Class A felony listed under ORS 137.700 or 137.707;

      (b) The extent to which the case presents speedy trial concerns; and

      (c) The extent to which the case presents a significant issue of law. [1981 c.550 §4; 2001 c.870 §4c]

 

      138.260 [Repealed by 1981 c.178 §18]

 

      138.261 Time within which certain appeals must be decided. (1) When a defendant is charged with a felony and is in custody pending an appeal under ORS 138.060 (1)(a) or (c), the Court of Appeals and the Supreme Court shall decide the appeal within the time limits prescribed by this section.

      (2)(a) Pursuant to rules adopted by the Court of Appeals, the Court of Appeals shall ensure that the appeal is fully briefed no later than 90 days after the date the transcript is settled under ORS 19.370.

      (b) Notwithstanding paragraph (a) of this subsection, the Court of Appeals may allow more than 90 days after the transcript is settled to fully brief the appeal if it determines that the ends of justice served by allowing more time outweigh the best interests of the public, the parties and the victim of the crime.

      (3) The Court of Appeals shall decide the appeal no later than 180 days after the date of oral argument or, if the appeal is not orally argued, the date that the State Court Administrator delivers the briefs to the Court of Appeals for decision. Any reasonable period of delay incurred by the Court of Appeals on its own motion or at the request of one of the parties is excluded from the 180-day period within which the Court of Appeals is required to issue a decision if the Court of Appeals determines that the ends of justice served by a decision on a later date outweigh the best interests of the public, the parties and the victim of the crime.

      (4)(a) In determining whether to allow more than 90 days after the transcript is settled to fully brief the appeal or more than 180 days after oral argument or delivery of the briefs to decide the appeal, the Court of Appeals shall consider whether:

      (A) The appeal is unusually complex or presents novel questions of law so that the prescribed time limit is unreasonable; and

      (B) The failure to extend the time limit would likely result in a miscarriage of justice.

      (b) If the Court of Appeals decides to allow additional time to fully brief the appeal or to decide the appeal, the Court of Appeals shall state the reasons for doing so in writing and shall serve a copy of the writing on the parties.

      (5) If the Supreme Court allows review of a decision of the Court of Appeals on an appeal described in subsection (1) of this section, the Supreme Court shall issue its decision on review no later than 180 days after the date of oral argument or, if the review is not orally argued, the date the State Court Administrator delivers the briefs to the Supreme Court for decision. Any reasonable period of delay incurred by the Supreme Court on its own motion or at the request of one of the parties is excluded from the 180-day period within which the Supreme Court is required to issue a decision if the Supreme Court determines that the ends of justice served by a decision on a later date outweigh the best interests of the public, the parties and the victim of the crime.

      (6)(a) In determining whether to allow more than 180 days after oral argument or delivery of the briefs to decide the review, the Supreme Court shall consider whether:

      (A) The review is unusually complex or presents novel questions of law so that the prescribed time limit is unreasonable; and

      (B) The failure to extend the time limit would likely result in a miscarriage of justice.

      (b) If the Supreme Court decides to allow additional time to decide the review, the Supreme Court shall state the reasons for doing so in writing and shall serve a copy of the writing on the parties.

      (7) Failure of the Court of Appeals or the Supre