2007 Oregon Code - Chapter 138 :: Chapter 138 - Appeals - Post-Conviction Relief
Chapter 138 —
Appeals; Post-Conviction Relief
2007 EDITION
APPEALS; POST-CONVICTION RELIEF
PROCEDURE IN CRIMINAL MATTERS GENERALLY
APPEALS
138.005Â Â Â Â Definitions
for ORS 138.010 to 138.310
138.010Â Â Â Â Mode
of review; abolition of writs of error and certiorari
138.012Â Â Â Â Sentence
of death; automatic and direct review by Supreme Court
138.020Â Â Â Â Who
may appeal
138.030Â Â Â Â Parties
designated “appellant” and “respondent”; title of action
138.040Â Â Â Â Appeal
by defendant generally; reviewable matters
138.050Â Â Â Â Appeal
from sentence on plea of guilty or no contest
138.053Â Â Â Â Judgments
and orders that are subject to appeal
138.057Â Â Â Â Appeal
from judgment involving violation
138.060Â Â Â Â Appeal
by state
138.071Â Â Â Â Time
within which appeal must be taken
138.081Â Â Â Â Service
and filing of notice of appeal
138.083Â Â Â Â Retention
of authority by trial court for certain purposes
138.090Â Â Â Â Signature
to notice of appeal
138.110Â Â Â Â Service
of notice of appeal on defendant or attorney by publication in certain cases
138.120Â Â Â Â When
appeal is perfected in case of service of notice of appeal by publication
138.135Â Â Â Â DefendantÂ’s
appeal or petition for review as stay of sentence
138.145Â Â Â Â Delivery
of defendant under sentence of imprisonment to intake center
138.160Â Â Â Â Appeal
by state as stay of judgment or order; release
138.185Â Â Â Â Transmission
of record to Court of Appeals; statutes applicable to appeal to Court of
Appeals
138.210Â Â Â Â Necessity
of appearance of appellant
138.220Â Â Â Â Scope
of review
138.222Â Â Â Â Scope
of review of sentence imposed for felony committed on or after November 1, 1989
138.225Â Â Â Â Summary
affirmation; when allowed
138.227Â Â Â Â Vacation
of judgment and remand; when allowed
138.230Â Â Â Â Rulings
in discretion of court and technical defects as grounds for reversal
138.240Â Â Â Â Judgments
appellate court may give
138.250Â Â Â Â New
trial to be in court below; reversal without new trial
138.255Â Â Â Â Court
of Appeals certification of appeal to Supreme Court in lieu of disposition;
party request for Supreme Court review
138.261Â Â Â Â Time
within which certain appeals must be decided
138.300Â Â Â Â CountyÂ’s
liability for costs on appeal in criminal action
138.310Â Â Â Â Notice
to court below when public defense services executive director certifies costs,
expenses or compensation
138.480Â Â Â Â Public
Defense Services Commission to provide representation for prisoner in
proceeding before appellate court
138.500Â Â Â Â Appointment
of counsel and furnishing of transcript for appellant without funds;
compensation
138.504Â Â Â Â Waiver
of counsel; appointment of legal advisor
POST-CONVICTION RELIEF
138.510Â Â Â Â Persons
who may file petition for relief; time limit
138.520Â Â Â Â Relief
which court may grant
138.525Â Â Â Â Dismissal
of meritless petition
138.527Â Â Â Â Frivolous
petition or response; attorney fees
138.530Â Â Â Â When
relief must be granted; executive clemency or pardon powers and original jurisdiction
of Supreme Court in habeas corpus not affected
138.540Â Â Â Â Petition
for relief as exclusive remedy for challenging conviction; when petition may
not be filed; abolition or availability of other remedies
138.550Â Â Â Â Availability
of relief as affected by prior judicial proceedings
138.560Â Â Â Â Procedure
upon filing petition for relief; filing fee; venue and transfer of proceedings;
surcharge
138.570Â Â Â Â Who
shall be named as defendant; counsel for defendant
138.580Â Â Â Â Petition
138.590Â Â Â Â Petitioner
may proceed as a financially eligible person
138.610Â Â Â Â Pleadings
138.620Â Â Â Â Hearing
138.622Â Â Â Â Appearance
by communication device
138.625Â Â Â Â Victim
testimony
138.630Â Â Â Â Evidence
of events occurring at trial of petitioner
138.640Â Â Â Â Judgment;
enforcement
138.650Â Â Â Â Appeal
138.660Â Â Â Â Summary
affirmation of judgment; dismissal of appeal
138.670Â Â Â Â Admissibility,
at new trial, of testimony of witness at first trial
138.680Â Â Â Â Short
title
138.686Â Â Â Â Automatic
stay of sentence of death for federal appeal and state post-conviction relief
POST-CONVICTION MOTION FOR DNA TESTING
138.690Â Â Â Â Motion
138.692Â Â Â Â Affidavit;
order; costs
138.694Â Â Â Â Appointed
counsel
138.696Â Â Â Â Test
results
138.698Â Â Â Â 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 defendantÂ’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 defendantÂ’s probation, imposed or modified a condition of the
defendantÂ’s probation or sentence suspension or revoked the defendantÂ’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 officerÂ’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
defendantÂ’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 plaintiffÂ’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 courtÂ’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
DefendantÂ’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 defendantÂ’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 courtÂ’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 courtÂ’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
appellantÂ’s brief and without submission of the respondentÂ’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 respondentÂ’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
Supreme Court to decide an appeal or review within the time limits prescribed
in this section is not a ground for dismissal of the appeal or review.
     (8) Any delay sought or acquiesced in by
the defendant does not count against the state with respect to any statutory or
constitutional right of the defendant to a speedy trial. [2001 c.870 §4b]
     138.265 [1981 c.178 §6; repealed by 1985 c.734 §20]
     138.270 [Amended by 1981 c.178 §7; repealed by 1985
c.734 §20]
     138.280 [Amended by 1959 c.558 §41; 1981 c.178 §8;
repealed by 1985 c.734 §20]
     138.290 [Amended by 1981 c.178 §9; repealed by 1985
c.734 §20]
     138.300
CountyÂ’s liability for costs on appeal in criminal action. Except as otherwise specifically provided by
law, upon final reversal of the judgment of the lower court in a criminal
action, the county shall be liable for costs on appeal to the Court of Appeals
and on review by the Supreme Court and with like effect as in the case of
natural persons; and such costs shall be paid in the first instance by the
county from which the appeal is taken. [Amended by 1969 c.198 §68; 1983 c.763 §15]
     138.310
Notice to court below when public defense services executive director certifies
costs, expenses or compensation. When the public defense services executive director pays costs,
expenses or compensation under ORS 138.500 (5) on appeal in a criminal action,
the public defense services executive director shall notify the court below of
the costs, expenses and compensation paid in order that the court below may
exercise its discretion under ORS 151.505 or 161.665 (2). [1983 c.763 §14; 1989
c.1053 §10; 1991 c.790 §16; 1997 c.761 §11; 2001 c.962 §69; 2007 c.291 §2]
     138.410 [Formerly 138.810; repealed by 1967 c.372 §13]
     138.420 [Formerly 138.820; repealed by 1967 c.372 §13]
     138.430 [Formerly 138.830: repealed by 1967 c.372 §13]
     138.440 [Formerly 138.840; 1961 c.480 §1; repealed
by 1967 c.372 §13]
     138.480
Public Defense Services Commission to provide representation for prisoner in
proceeding before appellate court. The Supreme Court or the Court of Appeals may, in its discretion, at
the request of an individual who is deprived of liberty by a judgment, is
without means to retain an attorney and is without the aid of an attorney,
direct the Public Defense Services Commission to provide representation for the
individual in a proceeding before it to test the validity of that judgment. [1963
c.600 §10; 1969 c.198 §69; 2001 c.962 §28]
     138.490 [1963 c.600 §11; 1969 c.198 §70; 1977 c.752 §5;
1979 c.867 §2; 1981 s.s. c.3 §125; 1985 c.502 §22; 1989 c.1053 §5; 1993 c.33 §302;
2001 c.962 §104; repealed by 2001 c.962 §115]
     138.500
Appointment of counsel and furnishing of transcript for appellant without
funds; compensation. (1) If
a defendant in a criminal action or a petitioner in a proceeding pursuant to
ORS 138.510 to 138.680 wishes to appeal from an appealable adverse final order
or judgment of a circuit court and if the person is without funds to employ
suitable counsel possessing skills and experience commensurate with the nature
and complexity of the case for the appeal, the person may request the circuit
court from which the appeal is or would be taken to appoint counsel to
represent the person on appeal. The following apply to a request under this
subsection:
     (a) The request shall be in writing and
shall be made within the time during which an appeal may be taken or, if the
notice of appeal has been filed, at any time thereafter. The request shall
include a brief statement of the assets, liabilities and income in the previous
year of the person unless the court already determined the person to be
financially eligible for appointed counsel at state expense for purposes of the
specific case, in which instance, the written request need only so indicate.
However, if a request relies on a courtÂ’s previous determination that the
person is financially eligible, the court, in its discretion, may require the
person to submit a new statement of assets, liabilities and income.
     (b) If, based upon a request under
paragraph (a) of this subsection, the court finds that petitioner or defendant
previously received the services of appointed counsel or currently is without
funds to employ suitable counsel for an appeal, the court shall appoint counsel
to represent petitioner or defendant on the appeal.
     (2)(a) Notwithstanding subsection (1) of
this section, when a defendant has been sentenced to death, the request for
appointed counsel shall be made to the Supreme Court. The Supreme Court shall
appoint suitable counsel to represent the defendant on the appeal.
     (b) After the notice of appeal has been
filed, the Court of Appeals has concurrent authority to appoint or substitute
counsel or appoint or substitute a legal advisor for the defendant under ORS
138.504.
     (c) The Supreme Court has concurrent
authority to appoint or substitute counsel or appoint or substitute a legal
advisor for the defendant under ORS 138.504 in connection with review of a
Court of Appeals decision under ORS 2.520.
     (d) Neither the Court of Appeals nor the
Supreme Court may substitute one appointed counsel for another under paragraph
(b) or (c) of this subsection except pursuant to the policies, procedures,
standards and guidelines of the Public Defense Services Commission.
     (3) Whenever a defendant in a criminal
action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 has
filed a notice of appeal from an appealable adverse final order or judgment of
a circuit court and the person is without funds to pay for a transcript, or
portion thereof, necessary to present adequately the case upon appeal, the
person may request the public defense services executive director to have the
transcript, or portion thereof, prepared for purposes of appeal. The following
apply to a request under this subsection:
     (a) The public defense services executive
director shall authorize the preparation of a transcript after a court has
determined that the person is eligible for court-appointed counsel or, if the
person has not applied for court-appointed counsel, the person submits a
statement of the personÂ’s assets, liabilities and income in the previous year
and the director determines that the person is eligible for preparation of a
transcript at state expense.
     (b) The cost of the transcript preparation
under paragraph (a) of this subsection shall be in the amount prescribed in ORS
21.470 and paid for as provided by the policies, procedures, standards and
guidelines of the Public Defense Services Commission.
     (4) After submission of the original brief
by counsel, the public defense services executive director shall determine the
cost of briefs and any other expenses of appellant, except transcripts,
necessary to appellate review and a reasonable amount of compensation for
counsel appointed under this section. Compensation payable to appointed counsel
shall be as established under ORS 151.216. On any review by the Supreme Court
of the judgment of the Court of Appeals the public defense services executive director
shall similarly determine the costs of briefs and any other expenses necessary
for review and a reasonable amount of compensation for counsel appointed under
this section.
     (5) Costs, expenses and compensation
determined by the public defense services executive director under subsection
(4) of this section shall be paid by the public defense services executive
director from funds available for that purpose.
     (6) If the public defense services
executive director denies, in whole or in part, costs, expenses and
compensation submitted for review and payment, the person who submitted the
payment request may appeal the decision to the Chief Judge of the Court of
Appeals, if the appeal is in the Court of Appeals, or to the Chief Justice of
the Supreme Court, if the appeal is in the Supreme Court. The Chief Judge,
Chief Justice or the designee of the Chief Judge or Chief Justice, as
appropriate, shall review the public defense services executive directorÂ’s
decision for abuse of discretion. The decision of the Chief Judge, the Chief
Justice or the designee of the Chief Judge or Chief Justice is final.
     (7) The provisions of this section shall
apply in favor of the defendant in a criminal action or the petitioner in a
proceeding pursuant to ORS 138.510 to 138.680 when the person is respondent in
an appeal taken by the state in a criminal action or by the defendant in a
proceeding pursuant to ORS 138.510 to 138.680.
     (8) As used in this section, “criminal
action” does not include an action that involves only violations.
     (9) As used in subsection (4) of this
section, “counsel” includes a legal advisor appointed under ORS 138.504. [1959
c.636 §23; 1961 c.480 §2; 1963 c.600 §8; 1969 c.198 §71; 1971 c.257 §3; 1977
c.752 §6; 1979 c.867 §3; 1981 s.s. c.3 §126; 1983 c.763 §16; 1983 c.774 §5;
1985 c.58 §1; 1985 c.502 §20; 1989 c.1053 §6; 1991 c.790 §17; 1991 c.827 §1;
1995 c.117 §2; 1995 c.194 §1; 2001 c.962 §§29,108; 2003 c.449 §§7,44; 2005
c.454 §1; 2007 c.291 §1]
     138.504
Waiver of counsel; appointment of legal advisor. (1) If the defendant wishes to waive counsel
in the appeal of a criminal action to the Court of Appeals or on review of a
criminal action by the Supreme Court, the court shall determine whether the
defendant has made a knowing and voluntary waiver of counsel. The court shall
accept the waiver of counsel if the defendant is not charged with a capital
offense. The court may decline to accept the waiver of counsel if the defendant
is charged with a capital offense.
     (2) If the court accepts a defendant’s waiver
of counsel, the court may allow an attorney to serve as the defendantÂ’s legal
advisor and, if the defendant is financially eligible for appointed counsel at
state expense, may appoint an attorney as the defendantÂ’s legal advisor.
     (3) If the court declines to accept a
defendantÂ’s waiver of counsel under subsection (1) of this section, the court
shall give the defendant a reasonable opportunity, as prescribed by order or
rule of the court, to file a brief on the defendant’s own behalf. [2001 c.472 §2;
2001 c.962 §29a]
     Note: 138.504 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.
POST-CONVICTION
RELIEF
     138.510
Persons who may file petition for relief; time limit. (1) Except as otherwise provided in ORS
138.540, any person convicted of a crime under the laws of this state may file
a petition for post-conviction relief pursuant to ORS 138.510 to 138.680.
     (2) A petition for post-conviction relief
may be filed by one person on behalf of another person who has been convicted
of aggravated murder and sentenced to death only if the person filing the
petition demonstrates by a preponderance of the evidence that:
     (a) The person sentenced to death is
unable to file a petition on the personÂ’s own behalf due to mental incapacity
or because of a lack of access to the court; and
     (b) The person filing the petition has a
significant relationship with the person sentenced to death and will act in the
best interest of the person on whose behalf the petition is being filed.
     (3) A petition pursuant to ORS 138.510 to
138.680 must be filed within two years of the following, unless the court on
hearing a subsequent petition finds grounds for relief asserted which could not
reasonably have been raised in the original or amended petition:
     (a) If no appeal is taken, the date the
judgment or order on the conviction was entered in the register.
     (b) If an appeal is taken, the date the
appeal is final in the
     (c) If a petition for certiorari to the
     (A) The date of denial of certiorari, if
the petition is denied; or
     (B) The date of entry of a final state
court judgment following remand from the United States Supreme Court.
     (4) A one-year filing period shall apply
retroactively to petitions filed by persons whose convictions and appeals
became final before August 5, 1989, and any such petitions must be filed within
one year after November 4, 1993. A person whose post-conviction petition was
dismissed prior to November 4, 1993, cannot file another post-conviction
petition involving the same case.
     (5) The remedy created by ORS 138.510 to
138.680 is available to persons convicted before May 26, 1959.
     (6) In any post-conviction proceeding
pending in the courts of this state on May 26, 1959, the person seeking relief
in such proceedings shall be allowed to amend the action and seek relief under
ORS 138.510 to 138.680. If such person does not choose to amend the action in
this manner, the law existing prior to May 26, 1959, shall govern the case. [1959
c.636 §§1,16,17; 1989 c.1053 §18; 1993 c.517 §1; 1999 c.1055 §7; 2007 c.292 §1]
     138.520
Relief which court may grant.
The relief which a court may grant or order under ORS 138.510 to 138.680 shall
include release, new trial, modification of sentence, and such other relief as
may be proper and just. The court may also make supplementary orders to the relief
granted, concerning such matters as rearraignment, retrial, custody and release
on security. [1959 c.636 §2; 1999 c.1051 §258]
     138.525
Dismissal of meritless petition. (1) The court may, on its own motion or on the motion of the
defendant, enter a judgment denying a meritless petition brought under ORS
138.510 to 138.680.
     (2) As used in this section, “meritless
petition” means one that, when liberally construed, fails to state a claim upon
which post-conviction relief may be granted.
     (3) Notwithstanding ORS 138.650, a
judgment dismissing a meritless petition is not appealable.
     (4) A dismissal is without prejudice if a
meritless petition is dismissed without a hearing and the petitioner was not
represented by counsel. [1993 c.517 §3]
     138.527
Frivolous petition or response; attorney fees. (1) In addition to any other relief a court
may grant or order under ORS 138.510 to 138.680, the court shall award attorney
fees to the prevailing party if the court finds that the other partyÂ’s petition
or response was frivolous.
     (2) An award of attorney fees under this
section may not exceed $100.
     (3) If the party required to pay attorney
fees is an inmate of a correctional institution, the fees may be drawn from, or
charged against, the inmate’s trust account. [1995 c.657 §3]
     Note: 138.527 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.
     138.530
When relief must be granted; executive clemency or pardon powers and original
jurisdiction of Supreme Court in habeas corpus not affected. (1) Post-conviction relief pursuant to ORS
138.510 to 138.680 shall be granted by the court when one or more of the following
grounds is established by the petitioner:
     (a) A substantial denial in the
proceedings resulting in petitionerÂ’s conviction, or in the appellate review
thereof, of petitionerÂ’s rights under the Constitution of the
     (b) Lack of jurisdiction of the court to
impose the judgment rendered upon petitionerÂ’s conviction.
     (c) Sentence in excess of, or otherwise
not in accordance with, the sentence authorized by law for the crime of which
petitioner was convicted; or unconstitutionality of such sentence.
     (d) Unconstitutionality of the statute
making criminal the acts for which petitioner was convicted.
     (2) Whenever a person petitions for relief
under ORS 138.510 to 138.680, ORS 138.510 to 138.680 shall not be construed to
deny relief where such relief would have been available prior to May 26, 1959,
under the writ of habeas corpus, nor shall it be construed to affect any powers
of executive clemency or pardon provided by law.
     (3) ORS 138.510 to 138.680 shall not be
construed to limit the original jurisdiction of the Supreme Court in habeas
corpus as provided in the Constitution of this state. [1959 c.636 §§3,5]
     138.540
Petition for relief as exclusive remedy for challenging conviction; when
petition may not be filed; abolition or availability of other remedies. (1) Except as otherwise provided in ORS
138.510 to 138.680, a petition pursuant to ORS 138.510 to 138.680 shall be the
exclusive means, after judgment rendered upon a conviction for a crime, for
challenging the lawfulness of such judgment or the proceedings upon which it is
based. The remedy created by ORS 138.510 to 138.680 does not replace or
supersede the motion for new trial, the motion in arrest of judgment or direct
appellate review of the sentence or conviction, and a petition for relief under
ORS 138.510 to 138.680 shall not be filed while such motions or appellate
review remain available. With the exception of habeas corpus, all common law
post-conviction remedies, including the motion to correct the record, coram
nobis, the motion for relief in the nature of coram nobis and the motion to
vacate the judgment, are abolished in criminal cases.
     (2) When a person restrained by virtue of
a judgment upon a conviction of crime asserts the illegality of the restraint
upon grounds other than the unlawfulness of such judgment or the proceedings
upon which it is based or in the appellate review thereof, relief shall not be
available under ORS 138.510 to 138.680 but shall be sought by habeas corpus or
other remedies, if any, as otherwise provided by law. As used in this
subsection, such other grounds include but are not limited to unlawful
revocation of parole or conditional pardon or completed service of the sentence
imposed. [1959 c.636 §4]
     138.550
Availability of relief as affected by prior judicial proceedings. The effect of prior judicial proceedings
concerning the conviction of petitioner which is challenged in the petition
shall be as specified in this section and not otherwise:
     (1) The failure of petitioner to have
sought appellate review of the conviction, or to have raised matters alleged in
the petition at the trial of the petitioner, shall not affect the availability
of relief under ORS 138.510 to 138.680. But no proceeding under ORS 138.510 to
138.680 shall be pursued while direct appellate review of the conviction of the
petitioner, a motion for new trial, or a motion in arrest of judgment remains
available.
     (2) When the petitioner sought and
obtained direct appellate review of the conviction and sentence of the
petitioner, no ground for relief may be asserted by petitioner in a petition
for relief under ORS 138.510 to 138.680 unless such ground was not asserted and
could not reasonably have been asserted in the direct appellate review
proceeding. If petitioner was not represented by counsel in the direct
appellate review proceeding, due to lack of funds to retain such counsel and
the failure of the court to appoint counsel for that proceeding, any ground for
relief under ORS 138.510 to 138.680 which was not specifically decided by the
appellate court may be asserted in the first petition for relief under ORS
138.510 to 138.680, unless otherwise provided in this section.
     (3) All grounds for relief claimed by
petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in
the original or amended petition, and any grounds not so asserted are deemed
waived unless the court on hearing a subsequent petition finds grounds for
relief asserted therein which could not reasonably have been raised in the
original or amended petition. However, any prior petition or amended petition
which was withdrawn prior to the entry of judgment by leave of the court, as
provided in ORS 138.610, shall have no effect on petitionerÂ’s right to bring a
subsequent petition.
     (4) Except as otherwise provided in this
subsection, no ground for relief under ORS 138.510 to 138.680 claimed by
petitioner may be asserted when such ground has been asserted in any
post-conviction proceeding prior to May 26, 1959, and relief was denied by the
court, or when such ground could reasonably have been asserted in the prior
proceeding. However, if petitioner was not represented by counsel in such prior
proceeding, any ground for relief under ORS 138.510 to 138.680 which was not
specifically decided in the prior proceedings may be raised in the first
petition for relief pursuant to ORS 138.510 to 138.680. PetitionerÂ’s assertion,
in a post-conviction proceeding prior to May 26, 1959, of a ground for relief
under ORS 138.510 to 138.680, and the decision of the court in such proceeding
adverse to the petitioner, shall not prevent the assertion of the same ground
in the first petition pursuant to ORS 138.510 to 138.680 if the prior adverse
decision was on the ground that no remedy heretofore existing allowed relief
upon the grounds alleged, or if the decision rested upon the inability of the
petitioner to allege and prove matters contradicting the record of the trial which
resulted in the conviction and sentence of the petitioner. [1959 c.636 §15]
     138.560
Procedure upon filing petition for relief; filing fee; venue and transfer of
proceedings; surcharge. (1)
A proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680
shall be commenced by filing a petition and two copies thereof with the clerk
of the circuit court for the county in which the petitioner is imprisoned or,
if the petitioner is not imprisoned, with the clerk of the circuit court for
the county in which the petitionerÂ’s conviction and sentence was rendered.
Except as otherwise provided in ORS 138.590, the petitioner shall pay a $28
filing fee at the time of filing a petition under this section. If the
petitioner prevails, the petitioner shall recover the fee pursuant to the
Oregon Rules of Civil Procedure. The clerk of the court in which the petition
is filed shall enter and file the petition and bring it promptly to the
attention of such court. A copy of the petition need not be served by petitioner
on the defendant, but, in lieu thereof, the clerk of the court in which the
petition is filed shall immediately forward a copy of the petition to the
Attorney General or other attorney for the defendant named in ORS 138.570.
     (2) For the purposes of ORS 138.510 to
138.680, a person released on parole or conditional pardon shall be deemed to
be imprisoned in the institution from which the person is so released.
     (3) Except when petitioner’s conviction
was for a misdemeanor, the release of the petitioner from imprisonment during
the pendency of proceedings instituted pursuant to ORS 138.510 to 138.680 shall
not cause the proceedings to become moot. Such release of petitioner shall not
change the venue of the proceedings out of the circuit court in which they were
commenced and shall not affect the power of such court to transfer the
proceedings as provided in subsection (4) of this section.
     (4) Whenever the petitioner is imprisoned
in a Department of Corrections institution and the circuit court for the county
in which the petitioner is imprisoned finds that the hearing upon the petition
can be more expeditiously conducted in the county in which the petitioner was
convicted and sentenced, the circuit court upon its own motion or the motion of
a party may order the petitionerÂ’s case to be transferred to the circuit court
for the county in which petitionerÂ’s conviction and sentence were rendered. The
courtÂ’s order is not reviewable by any court of this state.
     (5) When a petitioner who is imprisoned in
a Department of Corrections institution is transferred to another Department of
Corrections institution, the circuit court in which a post-conviction relief
proceeding is pending may deny a motion for a change of venue to the county
where the petitioner is transferred. The courtÂ’s order is not reviewable by any
court of this state. [1959 c.636 §6; 1983 c.505 §14; 1987 c.320 §44; 1991 c.249
§17; 1995 c.273 §20; 1995 c.657 §4; 2003 c.261 §1; 2003 c.737 §§65,66; 2005
c.702 §§77,78,79]
     Note: Section 15 (21), chapter 860, Oregon Laws
2007, provides:
     Sec.
15. (21) In addition to the
fee provided for in ORS 138.560, for the period commencing September 1, 2007,
and ending June 30, 2009, a petitioner shall pay a surcharge of $1 at the time
of filing a petition under ORS 138.560. [2007 c.860 §15(21)]
     138.570
Who shall be named as defendant; counsel for defendant. If the petitioner is imprisoned, the
petition shall name as defendant the official charged with the confinement of
petitioner. If the petitioner is not imprisoned, the defendant shall be the
State of
     138.580
Petition. The petition shall
be certified by the petitioner. Facts within the personal knowledge of the
petitioner and the authenticity of all documents and exhibits included in or
attached to the petition must be sworn to affirmatively as true and correct.
The Supreme Court, by rule, may prescribe the form of the certification. The
petition shall identify the proceedings in which petitioner was convicted and
any appellate proceedings thereon, give the date of entry of judgment and
sentence complained of and identify any previous post-conviction proceedings
that the petitioner has undertaken to secure a post-conviction remedy, whether
under ORS 138.510 to 138.680 or otherwise, and the disposition thereof. The
petition shall set forth specifically the grounds upon which relief is claimed,
and shall state clearly the relief desired. All facts within the personal
knowledge of the petitioner shall be set forth separately from the other
allegations of fact and shall be certified as heretofore provided in this
section. Affidavits, records or other documentary evidence supporting the
allegations of the petition shall be attached to the petition. Argument,
citations and discussion of authorities shall be omitted from the petition but
may be submitted in a separate memorandum of law. [1959 c.636 §8; 1991 c.885 §1;
1993 c.517 §4]
     138.590
Petitioner may proceed as a financially eligible person. (1) Any petitioner who is unable to pay the
expenses of a proceeding pursuant to ORS 138.510 to 138.680 or to employ
suitable counsel possessing skills and experience commensurate with the nature
of the conviction and complexity of the case for the proceeding may proceed as
a financially eligible person pursuant to this section upon order of the
circuit court in which the petition is filed.
     (2) If the petitioner wishes to proceed as
a financially eligible person, the person shall file with the petition an
affidavit stating inability to pay the expenses of a proceeding pursuant to ORS
138.510 to 138.680, including, but not limited to, the filing fee required by
ORS 138.560, or to employ suitable counsel for such a proceeding. The affidavit
shall contain a brief statement of the petitionerÂ’s assets and liabilities and
income during the previous year. If the circuit court is satisfied that the
petitioner is unable to pay such expenses or to employ suitable counsel, it
shall order that the petitioner proceed as a financially eligible person. If
the court finds that a petitioner who has been sentenced to death is not
competent to decide whether to accept or reject the appointment of counsel, the
court shall appoint counsel to represent the petitioner. However, when a
circuit court orders petitionerÂ’s case transferred to another circuit court as
provided in ORS 138.560 (4), the matter of petitionerÂ’s proceeding as a
financially eligible person shall be determined by the latter court.
     (3) If a petitioner who has been sentenced
to death qualifies for the appointment of counsel under this section but
rejects the appointment, the court shall determine, after a hearing if
necessary, whether the petitioner rejected the offer of counsel and made the
decision with an understanding of its legal consequences. The court shall make
appropriate findings on the record.
     (4) In the order to proceed as a
financially eligible person, the circuit court shall appoint suitable counsel
to represent petitioner. Counsel so appointed shall represent petitioner
throughout the proceedings in the circuit court. The court may not substitute
one appointed counsel for another except pursuant to the policies, procedures,
standards and guidelines of the Public Defense Services Commission.
     (5) If counsel appointed by the circuit
court determines that the petition as filed by petitioner is defective, either
in form or in substance, or both, counsel may move to amend the petition within
15 days following counselÂ’s appointment, or within a further period as the
court may allow. The amendment shall be permitted as of right at any time
during this period. If appointed counsel believes that the original petition
cannot be construed to state a ground for relief under ORS 138.510 to 138.680,
and cannot be amended to state a ground for relief, counsel shall, in lieu of
moving to amend the petition, inform the petitioner and notify the circuit
court of counselÂ’s belief by filing an affidavit stating the belief and the
reasons therefor with the clerk of the circuit court. This affidavit does not
constitute a ground for denying the petition prior to a hearing upon its
sufficiency, but the circuit court may consider the affidavit in deciding upon
the sufficiency of the petition at the hearing.
     (6) When a petitioner has been ordered to
proceed as a financially eligible person, the expenses which are necessary for
the proceedings upon the petition in the circuit court and the compensation to
appointed counsel for petitioner as provided in this subsection shall be paid
by the public defense services executive director from funds available for the
purpose. At the conclusion of proceedings on a petition pursuant to ORS 138.510
to 138.680, the public defense services executive director shall determine and
pay, as provided by the policies, procedures, standards and guidelines of the
Public Defense Services Commission, the amount of expenses of petitioner and
compensation for the services of appointed counsel in the proceedings in the
circuit court.
     (7) If the public defense services
executive director denies, in whole or in part, expenses and compensation
submitted for review and payment, the person who submitted the payment request
may appeal the decision to the presiding judge of the circuit court. The
presiding judge or the designee of the presiding judge shall review the public
defense services executive directorÂ’s decision for abuse of discretion. The
decision of the presiding judge or the designee of the presiding judge is
final.
     (8)(a) When a petitioner has been
authorized to proceed as a financially eligible person, all court fees in the
circuit court, except for the filing fee required by ORS 138.560, are waived.
     (b) When a petitioner is allowed to file a
petition without payment of the fee required by ORS 138.560 due to inability to
pay, the fee is not waived but may be drawn from, or charged against, the
petitionerÂ’s trust account if the petitioner is an inmate in a correctional
facility.
     (9) Notwithstanding any other provision of
this chapter, a court may not appoint as counsel for a petitioner who has been
sentenced to death a counsel who previously represented the petitioner at trial
or on automatic and direct review in the case resulting in the death sentence
unless the petitioner and the counsel expressly request continued
representation. [1959 c.636 §9; 1961 c.480 §3; 1963 c.600 §9; 1973 c.836 §279a;
1979 c.867 §4; 1981 s.s c.3 §127; 1983 c.763 §17; 1987 c.320 §46; 1989 c.1053 §7;
1991 c.827 §2; 1995 c.657 §5; 1999 c.1055 §8; 2001 c.962 §30; 2003 c.261 §§5,6;
2003 c.449 §§8,45]
     138.600 [1959 c.636 §10; repealed by 1997 c.872 §6]
     138.610
Pleadings. Within 30 days
after the docketing of the petition, or within any further time the court may
fix, the defendant shall respond by demurrer, answer or motion. No further
pleadings shall be filed except as the court may order. The court may grant
leave, at any time prior to entry of judgment, to withdraw the petition. The
court may make appropriate orders as to the amendment of the petition or any
other pleading, or as to the filing of further pleadings, or as to extending
the time of the filing of any pleading other than the original petition. [1959
c.636 §11]
     138.620
Hearing. (1) After the
response of the defendant to the petition, the court shall proceed to a hearing
on the issues raised. If the defendantÂ’s response is by demurrer or motion
raising solely issues of law, the circuit court need not order that petitioner
be present at such hearing, as long as petitioner is represented at the hearing
by counsel. At the hearing upon issues raised by any other response, the
circuit court shall order that petitioner be present. Whenever the court orders
that petitioner be present at the hearing, the court may order that petitioner
appear by telephone or other communication device as provided in ORS 138.622
rather than in person.
     (2) If the petition states a ground for
relief, the court shall decide the issues raised and may receive proof by
affidavits, depositions, oral testimony or other competent evidence. The burden
of proof of facts alleged in the petition shall be upon the petitioner to
establish such facts by a preponderance of the evidence. [1959 c.636 §12; 1996
c.4 §4; 2003 c.261 §4]
     138.622
Appearance by communication device. For the purpose of a court appearance under ORS 138.510 to 138.680,
the court may approve the appearance of the parties, counsel for the parties or
witnesses by telephone or other communication device approved by the court.
However, the court may not approve the appearance of the petitioner or counsel
for the petitioner by telephone or other communication device unless the
facilities used enable the petitioner to consult privately with the petitionerÂ’s
counsel during the proceedings. [2003 c.261 §3]
     138.625
Victim testimony. (1) A
petitioner in a post-conviction relief proceeding may not compel a victim to
testify, either by deposition, hearing or otherwise unless the petitioner moves
for an order of the court allowing a subpoena.
     (2) A copy of the motion for a subpoena
under this section must be served on the counsel for the defendant.
     (3) The court may not grant an order
allowing a subpoena under this section unless the petitioner can demonstrate
good cause by showing that the victim has information that is material to the
post-conviction relief proceeding, is favorable to the petitioner and is other
than what was admitted at trial.
     (4) If the court grants an order allowing
a subpoena under this section, upon a request by the victim for no personal
contact between the parties, the court may allow the victim to appear by
telephone or other communication device approved by the court. [2007 c.470 §1]
     Note: 138.625 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.
     138.630
Evidence of events occurring at trial of petitioner. In a proceeding pursuant to ORS 138.510 to
138.680, events occurring at the trial of petitioner may be shown by a duly
authenticated transcript, record or portion thereof. If such transcript or
record cannot be produced, the affidavit of the judge who presided at the trial
setting forth the facts occurring at the trial shall be admissible in evidence
when relevant. When necessary to establish any ground for relief specified in
ORS 138.530, the petitioner may allege and prove matters in contradiction of
the record of the trial of the petitioner. When the record is so contradicted,
the defendant may introduce in evidence any evidence which was admitted in
evidence at the trial to support the contradicted matter and may call witnesses
whose testimony at such trial supported the contradicted matter. Whenever such
evidence or such witnesses cannot be produced by defendant for any reason which
is sufficient in the opinion of the court, such parts of the duly authenticated
record of the trial as support the contradicted matter may be introduced in
evidence by the defendant. A duly authenticated record of the testimony of any
witness at the trial may be introduced in evidence to impeach the credibility
of any testimony by the same witness in the hearing upon the petition. [1959
c.636 §13]
     138.640
Judgment; enforcement. (1)
After deciding the issues raised in the proceeding, the court shall enter a
judgment denying the petition or granting the appropriate relief. The judgment
may include orders as provided in ORS 138.520. The judgment must clearly state
the grounds on which the cause was determined, and whether a state or federal
question was presented and decided.
     (2) If the court grants the petitioner
relief, the judgment is not enforceable in the petitionerÂ’s favor until:
     (a) The petitioner causes a certified copy
of the judgment to be entered in the circuit court in which the petitionerÂ’s
conviction and sentence were rendered; and
     (b) The petitioner serves a certified copy
of the judgment on the district attorney of the county in which the petitionerÂ’s
conviction and sentence were rendered. [1959 c.636 §14; 2003 c.576 §245; 2007
c.193 §2]
     138.650
Appeal. (1) Either the
petitioner or the defendant may appeal to the Court of Appeals within 30 days
after the entry of a judgment on a petition pursuant to ORS 138.510 to 138.680.
The manner of taking the appeal and the scope of review by the Court of Appeals
and the Supreme Court shall be the same as that provided by law for appeals in
criminal actions, except that:
     (a) The trial court may provide that the
transcript contain only such evidence as may be material to the decision of the
appeal; and
     (b) With respect to ORS 138.081 (1), if
petitioner appeals, petitioner shall cause the notice of appeal to be served on
the attorney for defendant, and, if defendant appeals, defendant shall cause
the notice of appeal to be served on the attorney for petitioner or, if
petitioner has no attorney of record, on petitioner.
     (2)(a) Upon motion of the petitioner, the
Court of Appeals shall grant the petitioner leave to file a notice of appeal
after the time limit described in subsection (1) of this section if:
     (A) The petitioner, by clear and
convincing evidence, shows that the failure to file a timely notice of appeal
is not attributable to the petitioner personally; and
     (B) The petitioner shows a colorable claim
of error in the proceeding from which the appeal is taken.
     (b) The request for leave to file a notice
of appeal after the time limit described in subsection (1) of this section
shall be filed no later than 90 days after entry of the judgment from which the
petitioner seeks to appeal and shall be accompanied by the notice of appeal
sought to be filed. A request for leave under this subsection may be filed by
mail. The date of filing shall be the date of mailing if the request is mailed
as provided in ORS 19.260.
     (c) The Court of Appeals may not grant
relief under this subsection unless the defendant has received notice of and an
opportunity to respond to the petitionerÂ’s request for relief.
     (3) An appeal under this section taken by
the defendant stays the effect of the judgment. If the petitioner is
incarcerated, the trial court may stay the petitionerÂ’s sentence pending the
defendantÂ’s appeal and order conditional release or security release, in
accordance with ORS 135.230 to 135.290, only if:
     (a) The post-conviction court’s judgment
vacates the judgment of conviction or reduces the sentence or sentences imposed
upon conviction;
     (b) The petitioner has completed any other
sentence of incarceration to which the petitioner is subject; and
     (c) The petitioner otherwise would be
entitled to immediate release from incarceration under the courtÂ’s judgment. [1959
c.636 §18; 1963 c.557 §1; 1969 c.198 §72; 1971 c.565 §26; 1987 c.852 §3; 2003
c.576 §246; 2007 c.193 §1]
     138.660
Summary affirmation of judgment; dismissal of appeal. In reviewing the judgment of the circuit
court in a proceeding pursuant to ORS 138.510 to 138.680, the Court of Appeals
on its own motion or on motion of respondent may summarily affirm, after
submission of the appellantÂ’s brief and without submission of the respondentÂ’s
brief, the judgment on appeal without oral argument if it 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 respondentÂ’s motion for summary
affirmation. A dismissal of the appeal under this section shall constitute a
decision upon the merits of the appeal. [1959 c.636 §19; 1963 c.557 §2; 1969
c.198 §73; 1995 c.295 §4]
     138.670
Admissibility, at new trial, of testimony of witness at first trial. In the event that a new trial is ordered as
the relief granted in a proceeding pursuant to ORS 138.510 to 138.680, a
properly authenticated transcript of testimony in the first trial may be
introduced in evidence to supply the testimony of any witness at the first
trial who has since died or who cannot be produced at the new trial for other
sufficient cause. Such transcript shall not be admissible in any other respect,
except that the transcript of testimony of a witness at the first trial may be
used at the new trial to impeach the testimony at the new trial by the same
witness. [1959 c.636 §20]
     138.680
Short title. ORS 138.510 to
138.680 may be cited as the Post-Conviction Hearing Act. [1959 c.636 §21]
     138.685 [1991 c.885 §3; repealed by 1999 c.1055 §15]
     138.686
Automatic stay of sentence of death for federal appeal and state
post-conviction relief. (1)
The execution of a sentence of death is automatically stayed for 90 days
following the effective date of an appellate judgment affirming the sentence of
death on automatic and direct review.
     (2) If the defendant files a petition for
certiorari seeking United States Supreme Court review of the sentence of death
within 90 days after the effective date of the appellate judgment or within
such other time as allowed by the United States Supreme Court, execution of the
sentence of death is automatically stayed until the United States Supreme Court
denies the petition or grants the petition and resolves the merits.
     (3) Upon final resolution of a petition
for certiorari to the United States Supreme Court, execution of the sentence of
death is automatically stayed for 30 days after the date the petition is
resolved to allow the defendant to file a notice in the circuit court of the
county in which the defendant is imprisoned attesting to the defendantÂ’s intent
to file a petition for post-conviction relief. If the defendant files a first
petition for post-conviction relief within 90 days after the notice provided
for in this subsection, the execution of the sentence of death is stayed until
the post-conviction petition is finally resolved. If a first petition for
post-conviction relief is not filed within 90 days after the notice provided
for in this subsection, the defendant may apply to the circuit court in which
the notice was filed to extend the stay. The circuit court shall extend the
stay for a reasonable time upon the defendantÂ’s showing that progress is being
made in the preparation of the petition and that it will be filed within a
reasonable time.
     (4) If the defendant does not file a
petition for certiorari seeking United States Supreme Court review of the
sentence of death but does file a first petition for post-conviction relief
within 90 days after the date upon which the appellate judgment becomes
effective, execution of the sentence of death is stayed until the petition for
post-conviction relief is finally resolved. [1999 c.1055 §6]
     Note: 138.686 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.
     138.687 [1991 c.885 §4; repealed by 1999 c.1055 §15]
POST-CONVICTION
MOTION FOR DNA TESTING
     138.690
Motion. A person may file in
the circuit court in which the judgment of conviction was entered a motion
requesting the performance of DNA (deoxyribonucleic acid) testing on specific
evidence if the person:
     (1) Is incarcerated in a Department of
Corrections institution as the result of a conviction for aggravated murder or
a person felony as defined in the rules of the Oregon Criminal Justice
Commission; or
     (2) Is not in custody but has been
convicted of aggravated murder, murder or a sex crime as defined in ORS
181.594. [2001 c.697 §1; 2005 c.759 §1; 2007 c.800 §1]
     Note: 138.690 to 138.698 were enacted into law by
the Legislative Assembly but were 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.
     138.692
Affidavit; order; costs.
(1)(a) When a person files a motion under ORS 138.690 requesting the performance
of DNA (deoxyribonucleic acid) testing on specified evidence, the motion must
be supported by an affidavit. The affidavit must:
     (A)(i) For a person described in ORS
138.690 (1), contain a statement that the person is innocent of the offense for
which the person was convicted or of the conduct underlying any mandatory
sentence enhancement; or
     (ii) For a person described in ORS 138.690
(2), contain a statement that the person is innocent of the offense for which
the person was convicted;
     (B) Identify the specific evidence to be
tested and a theory of defense that the DNA testing would support. The specific
evidence must have been secured in connection with the prosecution, including
the investigation, that resulted in the conviction of the person; and
     (C) Include the results of any previous
DNA test of the evidence if a previous DNA test was conducted by either the
prosecution or the defense.
     (b) The person must present a prima facie
showing that DNA testing of the specified evidence would, assuming exculpatory
results, establish the actual innocence of the person of:
     (A) The offense for which the person was
convicted; or
     (B) Conduct, if the exoneration of the
person of the conduct would result in a mandatory reduction in the personÂ’s
sentence.
     (2) The court shall order the DNA testing
requested in a motion under subsection (1) of this section if the court finds
that:
     (a) The requirements of subsection (1) of
this section have been met;
     (b) Unless the parties stipulate
otherwise, the evidence to be tested is in the possession of a city, county,
state or the court and has been subject to a chain of custody sufficient to
establish that the evidence has not been altered in any material aspect;
     (c) The motion is made in a timely manner
and for the purpose of demonstrating the innocence of the person of the offense
or of the conduct and not to delay the execution of the sentence or
administration of justice; and
     (d) There is a reasonable possibility that
the testing will produce exculpatory evidence that would establish the
innocence of the person of:
     (A) The offense for which the person was
convicted; or
     (B) Conduct, if the exoneration of the
person of the conduct would result in a mandatory reduction in the personÂ’s
sentence.
     (3) In granting a motion under this
section, the court may impose reasonable conditions designed to protect the
interests of the state in the integrity of the evidence and the testing
process.
     (4) Unless both parties agree otherwise,
the court shall order the Department of State Police to conduct the DNA
testing. The court may order a second test upon a showing that the state police
failed to follow appropriate DNA protocols and that failure reasonably affected
the accuracy of the DNA test.
     (5) The costs of DNA tests ordered under
this section must be paid by:
     (a) The person making the motion for DNA
testing if the person is not incarcerated or, if the person is incarcerated, if
the person is financially able to pay; or
     (b) The state if counsel at state expense
has been appointed under ORS 138.694.
     (6) The results of a DNA test ordered
under this section must be disclosed to the person filing the motion and to the
state.
     (7) Notwithstanding the fact that an
appeal of the conviction or a petition for post-conviction relief in the
underlying case is pending at the time a motion is filed under ORS 138.690, the
circuit court shall consider the motion. If the court grants the motion, the
court shall notify the court considering the appeal or post-conviction petition
of that fact. When a court receives notice under this subsection, the court
shall stay the appeal or post-conviction proceedings pending the outcome of the
motion filed under ORS 138.690 and any further proceedings resulting from the
motion. [2001 c.697 §2; 2005 c.759 §2; 2007 c.800 §2]
     Note: See note under 138.690.
     138.694
Appointed counsel. (1) A
person described in ORS 138.690 (1) may file a petition in the circuit court in
which the judgment of conviction was entered requesting the appointment of
counsel at state expense to assist the person in determining whether to file a
motion under ORS 138.690. The petition must be accompanied by:
     (a) A completed affidavit of eligibility
for appointment of counsel at state expense; and
     (b) An affidavit stating that:
     (A) The person meets the criteria in ORS
138.690 (1);
     (B) The person is innocent of the charge
for which the person was convicted or of the conduct that resulted in a
mandatory sentence enhancement;
     (C) The identity of the perpetrator of the
crime or conduct was at issue in the original prosecution or, if the person was
documented as having mental retardation prior to the time the crime was
committed, should have been at issue; and
     (D) The person is without sufficient funds
and assets, as shown by the affidavit required by paragraph (a) of this
subsection, to hire an attorney to represent the person in determining whether
to file a motion under ORS 138.690.
     (2) The court shall grant a petition filed
under this section if:
     (a) The petitioner complies with the requirements
of subsection (1) of this section; and
     (b) It appears to the court that the
petitioner is financially unable to employ suitable counsel possessing skills
and experience commensurate with the nature and complexity of the matter.
     (3) When a court grants a petition under
this section, the court shall appoint the attorney originally appointed to
represent the petitioner in the action that resulted in the conviction unless
the attorney is unavailable.
     (4) An attorney appointed under this
section:
     (a) If other than counsel provided
pursuant to ORS 151.460, is entitled to compensation and expenses as provided
in ORS 135.055; or
     (b) If counsel provided pursuant to ORS
151.460, is entitled to expenses as provided in ORS 135.055. [2001 c.697 §4;
2007 c.800 §3]
     Note: See note under 138.690.
     138.696
Test results. (1) If DNA
(deoxyribonucleic acid) testing ordered under ORS 138.692 produces inconclusive
evidence or evidence that is unfavorable to the person requesting the testing:
     (a) The court shall forward the results to
the State Board of Parole and Post-Prison Supervision; and
     (b) The Department of State Police shall
compare the evidence to DNA evidence from unsolved crimes in the Combined DNA
Index System.
     (2) If DNA testing ordered under ORS 138.692
produces exculpatory evidence, the person who requested the testing may file in
the court that ordered the testing a motion for a new trial based on newly
discovered evidence. Notwithstanding the time limit established in ORCP 64 F, a
person may file a motion under this subsection at any time during the 60-day
period that begins on the date the person receives the test results.
     (3) Upon receipt of a motion filed under
subsection (2) of this section and notwithstanding the time limits in ORCP 64
F, the court shall hear the motion. [2001 c.697 §3; 2003 c.288 §3]
     Note: See note under 138.690.
     138.698
Effect of setting aside conviction on plea agreement. When a conviction has been set aside as the
result of evidence obtained through DNA (deoxyribonucleic acid) testing
conducted under ORS 138.692, the prosecution of any offense that was dismissed
or not charged pursuant to a plea agreement that resulted in the conviction
that has been set aside may be commenced within the later of:
     (1) The period of limitation established
for the offense under ORS 131.125 to 131.155; or
     (2) Notwithstanding ORS 131.125 and
131.155, two years after the date the conviction was set aside. [2005 c.759 §3]
     Note: See note under 138.690.
     138.710 [1963 c.600 §1; renumbered 151.210]
     138.720 [1963 c.600 §2; 1969 c.314 §6; renumbered
151.270]
     138.730 [1963 c.600 §3; renumbered 151.280]
     138.740 [1963 c.600 §4(1),(3),(4),(5),(6),(7);
renumbered 151.220]
     138.750 [Subsection (1) enacted as 1963 c.600 §4(2);
subsection (2) enacted as 1963 c.600 §5(4); 1967 c.35 §1; 1969 c.644 §1; 1971
c.642 §3; renumbered 151.230]
     138.760 [1963 c.600 §5(1),(2),(3); renumbered
151.240]
     138.770 [1963 c.600 §6; 1967 c.372 §6; renumbered
151.250]
     138.780 [1963 c.600 §7; renumbered 151.260]
     138.790 [1963 c.600 §13; renumbered 151.290]
     138.810 [1955 c.662 §2; 1959 c.558 §42; renumbered
138.410]
     138.820 [1955 c.662 §3; 1959 c.558 §43; renumbered
138.420]
     138.830 [1955 c.662 §4; renumbered 138.430]
     138.840 [1955 c.662 §5; 1959 c.558 §44; renumbered
138.440]
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