Oregon Statutes - Chapter 138 - Appeals; Post-Conviction Relief

• 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...
• 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...
• 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....
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 138.070   [Repealed by 1971 c.565 §20 (138.071 enacted in lieu of 138.070)]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...
• 138.080   [Amended by 1959 c.558 §37; 1969 c.198 §65; 1971 c.193 §28; repealed by 1971 c.565 §22 (138.081 enacted in lieu of 138.080)]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...
• 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...
• 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....
• 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...
• 138.120   When appeal is perfected in case of service of notice of appeal by publication.
  At the expiration of the time appointed for the publication, on filing an affidavit thereof with the clerk, the appeal becomes perfected.
• 138.130   [Repealed by 1963 c.155 §1 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150)]
• 138.135   Defendant’s appeal or petition for review as stay of sentence.
  (1) A sentence of confinement shall be stayed if an appeal is taken and the defendant elects not to commence service of the sentence or...
• 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...
• 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,...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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   County’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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 138.527   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...
• 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...
• 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...
• 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...
• 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...
• 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,...
• 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...
• 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...
• 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...
• 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 defendant’s response...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 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...
• 138.687   [1991 c.885 §4; repealed by 1999 c.1055 §15]
• 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)...
• 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...
• 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...
• 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)...
• 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...
• 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]

Last modified: August 7, 2008