Reeve v. Maass

825 P.2d 652 (1992)

111 Or.App. 213

Elvin Larry REEVE, Appellant, v. Manfred (Fred) MAASS, Superintendent, Oregon State Penitentiary, Respondent.

90-C-10150; CA A65481.

Court of Appeals of Oregon.

Argued and Submitted January 3, 1991.

Decided February 12, 1992.

*653 David B. Kuhns, Salem, argued the cause for appellant. With him on the brief was Todd & Kuhns, Salem.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., JOSEPH, C.J.,[*] and DEITS, J.

RICHARDSON, Presiding Judge.

Petitioner seeks review of the dismissal of his petition for post-conviction relief on the ground that it was not timely filed. ORS 138.510(2). We affirm.

He makes essentially four arguments in support of his assignment of error. We have answered the first two against him in Boone v. Wright, 110 Or. App. 281, 822 P.2d 719 (1991), and Bartz v. State of Oregon, 110 Or. App. 614, 825 P.2d 657 (1992).

The third argument is that application of the statute would violate constitutional protections against ex post facto legislation. Ex post facto laws are prohibited by both the Oregon and the federal constitutions.[1]Ex post facto laws punish acts that were legal when they occurred, change the quantum of punishment for previous acts, deprive a defendant of a defense previously available or, in some instances, impose new disabilities for a conviction. Collins v. Youngblood, 497 U.S. ___, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990); State v. Gallant, 307 Or. 152, 155, 764 P.2d 920 (1988); State v. Burke, 109 Or. App. 7, 818 P.2d 511 (1991), rev. den. 312 Or. 589, 824 P.2d 418 (1992). Petitioner does not explain how retroactive application of the amendment runs afoul of those prohibitions. The 120-day limitation period does not in any way alter the proof required, the defenses available or the punishment meted out for any crime. We conclude that retroactive application of the amendment does not violate the constitutional prohibitions against ex post facto laws.

Petitioner's final argument is that, because there is no evidence that he was given actual notice of the change in the time limitation for exercising his rights to post-conviction relief, he has been denied due process of law. There is no right to notice of passage of legislation.

Affirmed.

[*] Joseph, C.J., vice Newman, J., deceased.

[1] Or.Const. Art. I, § 21; U.S. Const. Art. I, § 9.