Oregon Revised Statutes
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. “Appealable” means, in reference to a judgment or order rendered by a trial court, that the judgment or order is, by law, subject to appeal by a party. “Colorable claim of error” means an argument that is pla…
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.
The provisions of ORS 19.250, 19.260, 19.270, 19.365, 19.370, 19.380, 19.385, 19.390, 19.395, 19.435, 19.450 and 19.510 and, if the defendant is the appellant, the provisions of ORS 19.420 (3) shall apply to appeals to the Supreme Court and the Court of Appeals.
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.
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. (Appealable Judgments and Orders)
A defendant may take an appeal from the circuit court, or from a municipal court or a justice court that has become a court of record under ORS 51.025 or 221.342, to the Court of Appeals from a judgment: Conclusively disposing of all counts in the accusatory instrument or conclusively disposing of all counts severed from other counts; Convicting the defend…
The state may take an appeal from the circuit court, or from a municipal court or a justice court that has become a court of record under ORS 51.025 or 221.342, to the Court of Appeals from: An order made prior to trial dismissing or setting aside one or more counts in the accusatory instrument; An order allowing a demurrer; An order arresting the judgmen…
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. Notwithstanding ORS 163.150 (1)(a), after automatic and direct review of …
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 …
A party may appeal a judgment or order deciding a special statutory proceeding as provided in ORS 19.205.
(Notice of Appeal)
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. If a motion for new trial or motion in arrest of judgment is timely served and filed, a notice of appeal must be served and filed within 30 days from the earlier of the following dates:…
An appeal shall be taken by causing a notice of appeal in the form prescribed by ORS 19.250 to be served: When the defendant appeals: On the district attorney for the county in which the judgment is entered, if the appeal is from a conviction for a misdemeanor or felony under state law; On county counsel for the county in which the judgment is entered, if…
If a defendant appeals a judgment of conviction based only on a plea of guilty or no contest, the notice of appeal must: Include a statement that the defendant has reserved an issue for appeal under ORS 135.335; or Identify a colorable claim of error reviewable under ORS 138.105. If a defendant appeals from any of the following judgments or orders, the no…
The notice of appeal shall be signed by: The district attorney for the county or by the Attorney General, when an appeal is taken on behalf of the State of Oregon in a prosecution of an offense created by state statute. The defendant or an attorney for the defendant, when the defendant takes an appeal. County counsel for the county, when the county appeal…
(Matters Reviewable on Appeal)
On appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the provisions of this section. The appellate court has authority to review only questions of law appearing on the record. Except as otherwise provided in this section, the appellate court has authority to review any intermediate decision …
On appeal by the state, the appellate court has authority to review the judgment or order being appealed, subject to the provisions of this section. The appellate court has authority to review only questions of law appearing on the record. Except as otherwise provided in this section, the appellate court has authority to review any intermediate decision in…
(Authority of Appellate Court)
If the appellant fails to file a brief in the appellate court, the court shall dismiss the appeal. The defendant need not personally appear in the appellate court.
In reviewing the judgment of any court under ORS 138.010 to 138.310, the Court of Appeals, on its own motion or on the motion of the respondent, may summarily affirm, without oral argument, the judgment after submission of the appellant’s brief and without submission of the respondent’s brief if the court finds that no substantial question of law is presente…
On joint motion of the parties to an appeal in a criminal case, the appellate 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 intermediate decision by the trial court. On remand, the trial court shall have jurisdiction to enter a modified judgment or o…
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. 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 Administ…
Except as otherwise provided in this section, the appellate court may affirm, reverse, vacate or modify the judgment or order, or any part thereof, from which the appeal was taken. Subject to Article VII (Amended), section 3, Oregon Constitution, the appellate court shall not reverse, modify or vacate a trial court judgment or order if there is little likel…
When a defendant is charged with a felony and is in custody pending an appeal under ORS 138.045 (1)(a), (b) or (d), the Court of Appeals and the Supreme Court shall decide the appeal within the time limits prescribed by this section. Pursuant to rules adopted by the Court of Appeals, the Court of Appeals shall ensure that the appeal is fully briefed no late…
(Miscellaneous)
If the appellate court, during the pendency of an appeal, receives from the trial court an amended, corrected or supplemental judgment or an amended or corrected appealable order, the appellate court shall notify the attorney of record for the state and the attorney of record for the defendant or, if the defendant is not represented by an attorney, the defen…
A justice, municipal or circuit court may enter an order in a criminal action as defined in ORS 131.005 staying execution of a sentence, or a portion of a sentence, pending the resolution of an appeal. Except for good cause shown, a motion for an order under this section must be filed in the trial court no later than the filing of a notice of appeal. The tr…
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, …
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 busi…
When the executive director of the Oregon Public Defense Commission pays costs, expenses or compensation under ORS 138.500 (5) on appeal in a criminal action, the 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).
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 Oregon Public Defense Commission to provide representation for the individual in a proceeding before it to test the validity of tha…
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…
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…
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. 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 th…
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.
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. 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. Notwithstanding ORS 138.650, a judgment dismi…
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 party’s petition or response was frivolous. An award of attorney fees under this section may not exceed $100. If the party required to pay attorney fees is an adult in the cus…
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 substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the …
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 mot…
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: 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 avail…
A proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680 shall be commenced by filing a petition 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 petitioner’s conviction and sentence was rendered. …
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 Oregon. Whenever the defendant is the superintendent of a Department of Corrections institution, the Attorney General shall act as the superintendent’s attorney…
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 proceed…
A person who files a petition for post-conviction relief under ORS 138.510 to 138.680 and who seeks jury records that are confidential under ORS 10.215 must either include in the petition a request for access to the confidential records or file a motion in the proceedings seeking access to the confidential records. A motion under this subsection must be file…
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…
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…
In any proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680, a party shall provide to the other party, upon written request of the other party or an order of the court, the identity of and, except as provided in subsection (5) of this section, the contact information for any person who is a potential witness, whether the person may be cal…
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 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 issu…
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 de…
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. A copy of the motion for a subpoena under this section must be served on the counsel for the defendant. The court may not grant an order allowing a sub…
To accord crime victims due dignity and respect, a victim of a crime that is the subject of a petition for post-conviction relief filed under ORS 138.510 to 138.680 has, upon request, the following rights: The right to have the victim’s schedule taken into account in scheduling the post-conviction proceedings; The right to inspect, in advance of the post-c…
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 re…
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. If the cour…
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: …
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 appellant’s brief and without submission of the respondent’s brief, the judgment on appeal without oral argument if it finds that no substantial ques…
Upon joint motion of the parties to an appeal in a post-conviction relief proceeding, the court may vacate the judgment or order from which the appeal was taken and remand the matter to the circuit court to reconsider the judgment or order. Upon remand, the circuit court shall have jurisdiction to enter a revised judgment or order. After entry of a modified…
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.…
ORS 138.510 to 138.680 may be cited as the Post-Conviction Hearing Act.
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. 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 appe…
POST-CONVICTION MOTION FOR DNA TESTING
As used in ORS 138.688 to 138.700: “CODIS” means the Combined DNA Index System. “DNA” means deoxyribonucleic acid. “Exculpatory results” and “exculpatory evidence” are limited to those DNA test results or evidence that are material to a determination of the identity of the individual who committed the crime, or whether the crime was committed. “Federal s…
A person may file in the circuit court in which the judgment of conviction was entered a petition requesting the commencement of a DNA testing proceeding, and requesting that the court appoint an attorney for the purpose of determining whether to file a motion under ORS 138.692 for the performance of DNA testing on specific evidence, if the person has been c…
After a person files a petition under ORS 138.690, the person may file a motion requesting the performance of DNA testing on evidence. The motion must be supported by: A declaration by the person made under penalty of perjury that the person is innocent of the offense for which the person was convicted; and A statement that: Identifies the evidence to be …
A person described in ORS 138.690 is entitled to counsel during all stages of the proceedings described in ORS 138.692, 138.696, 138.697 and 138.700. A person described in ORS 138.690 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 determi…
If DNA testing ordered under ORS 138.692 produces inconclusive evidence or evidence that is unfavorable to the person requesting the testing: The court shall forward the results to the State Board of Parole and Post-Prison Supervision; and The Department of State Police shall compare the evidence to DNA evidence from unsolved crimes in the Combined DNA Ind…
A person described in ORS 138.690 may appeal to the Court of Appeals from a circuit court’s final order or judgment denying or limiting DNA testing under ORS 138.692, denying appointment of counsel under ORS 138.694 or denying a motion for a new trial under ORS 138.696. The state may appeal to the Court of Appeals from a circuit court’s final order or judgm…
When a conviction has been set aside as the result of evidence obtained through DNA 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: The period of limitation established for the offen…
If DNA testing ordered under ORS 138.692 produces an unidentified DNA profile, upon motion of a party the court may order an NDIS-participating laboratory within this state to: Enter the DNA profile into the National DNA Index System; or Enter the DNA profile into the State DNA Index System if the profile meets all applicable requirements. Notwithstanding…
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