ORS Chapter 138
Chapter 138 — Appeals;Post-Conviction Relief
2009 EDITION
APPEALS;POST-CONVICTION RELIEF
PROCEDUREIN CRIMINAL MATTERS GENERALLY
APPEALS
138.005 Definitionsfor ORS 138.010 to 138.310
138.010 Modeof review; abolition of writs of error and certiorari
138.012 Sentenceof death; automatic and direct review by Supreme Court
138.020 Whomay appeal
138.030 Partiesdesignated “appellant” and “respondent”; title of action
138.040 Appealby defendant generally; reviewable matters
138.050 Appealfrom sentence on plea of guilty or no contest
138.053 Judgmentsand orders that are subject to appeal
138.057 Appealfrom judgment involving violation
138.060 Appealby state
138.071 Timewithin which appeal must be taken
138.081 Serviceand filing of notice of appeal
138.083 Retentionof authority by trial court for certain purposes
138.090 Signatureto notice of appeal
138.110 Serviceof notice of appeal on defendant or attorney by publication in certain cases
138.120 Whenappeal is perfected in case of service of notice of appeal by publication
138.135 Defendant’sappeal or petition for review as stay of sentence
138.145 Deliveryof defendant under sentence of imprisonment to intake center
138.160 Appealby state as stay of judgment or order; release
138.185 Transmissionof record to Court of Appeals; statutes applicable to appeal to Court ofAppeals
138.210 Necessityof appearance of appellant
138.220 Scopeof review
138.222 Scopeof review of sentence imposed for felony committed on or after November 1, 1989
138.225 Summaryaffirmation; when allowed
138.227 Vacationof judgment and remand; when allowed
138.230 Rulingsin discretion of court and technical defects as grounds for reversal
138.240 Judgmentsappellate court may give
138.250 Newtrial to be in court below; reversal without new trial
138.255 Courtof Appeals certification of appeal to Supreme Court in lieu of disposition;party request for Supreme Court review
138.261 Timewithin which certain appeals must be decided
138.300 County’sliability for costs on appeal in criminal action
138.310 Noticeto court below when public defense services executive director certifies costs,expenses or compensation
138.480 PublicDefense Services Commission to provide representation for prisoner inproceeding before appellate court
138.500 Appointmentof counsel and furnishing of transcript for appellant without funds;compensation
138.504 Waiverof counsel; appointment of legal advisor
POST-CONVICTIONRELIEF
138.510 Personswho may file petition for relief; time limit
138.520 Reliefwhich court may grant
138.525 Dismissalof meritless petition
138.527 Frivolouspetition or response; attorney fees
138.530 Whenrelief must be granted; executive clemency or pardon powers and original jurisdictionof Supreme Court in habeas corpus not affected
138.540 Petitionfor relief as exclusive remedy for challenging conviction; when petition maynot be filed; abolition or availability of other remedies
138.550 Availabilityof relief as affected by prior judicial proceedings
138.560 Procedureupon filing petition for relief; filing fee; venue and transfer of proceedings;surcharge
138.570 Whoshall be named as defendant; counsel for defendant
138.580 Petition
138.590 Petitionermay proceed as a financially eligible person
138.610 Pleadings
138.620 Hearing
138.622 Appearanceby communication device
138.625 Victimtestimony
138.630 Evidenceof events occurring at trial of petitioner
138.640 Judgment;enforcement
138.650 Appeal
138.660 Summaryaffirmation of judgment; dismissal of appeal
138.670 Admissibility,at new trial, of testimony of witness at first trial
138.680 Shorttitle
138.686 Automaticstay of sentence of death for federal appeal and state post-conviction relief
POST-CONVICTIONMOTION FOR DNA TESTING
138.690 Motion
138.692 Affidavit;order; costs
138.694 Appointedcounsel
138.696 Testresults
138.698 Effectof setting aside conviction on plea agreement
APPEALS
138.005Definitions 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 themeanings set forth in ORS 19.005. [1959 c.558 §35]
138.010Mode of review; abolition of writs of error and certiorari. Writs of errorand of certiorari in criminal actions are abolished. The only mode of reviewinga judgment or order in a criminal action is that prescribed by ORS 138.010 to138.310.
138.012Sentence of death; automatic and direct review by Supreme Court. (1) Thejudgment 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 bythe Supreme Court has priority over all other cases and shall be heard inaccordance with rules adopted by the Supreme Court.
(2)Notwithstanding ORS 163.150 (1)(a), after automatic and direct review of aconviction 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 trialcourt. No error in the sentencing proceeding results in reversal of thedefendant’s conviction for aggravated murder. Upon remand and at the electionof the state, the trial court shall either:
(A)Sentence the defendant to imprisonment for life in the custody of theDepartment of Corrections as provided in ORS 163.105 (1)(c); or
(B)Impanel a new sentencing jury for the purpose of conducting a new sentencingproceeding to determine if the defendant should be sentenced to:
(i)Death;
(ii)Imprisonment for life without the possibility of release or parole as providedin ORS 163.105 (1)(b); or
(iii)Imprisonment for life in the custody of the Department of Corrections asprovided 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 otherevidence properly admitted in the prior trial and sentencing proceeding areadmissible in the new sentencing proceeding. Either party may recall anywitness who testified at the prior trial or sentencing proceeding and maypresent additional relevant evidence.
(c)The provisions of this subsection are procedural and apply to any defendantsentenced to death after December 6, 1984. [1999 c.1055 §5; 2001 c.306 §2]
Note: 138.012 wasenacted into law by the Legislative Assembly but was not added to or made apart of ORS chapter 138 or any series therein by legislative action. SeePreface to Oregon Revised Statutes for further explanation.
138.020Who may appeal.Either the state or the defendant may as a matter of right appeal from ajudgment in a criminal action in the cases prescribed in ORS 138.010 to138.310, and not otherwise.
138.030Parties designated “appellant” and “respondent”; title of action. The partyappealing 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.
138.040Appeal by defendant generally; reviewable matters. Except asprovided under ORS 138.050, the defendant may appeal to the Court of Appealsfrom a judgment or order described under ORS 138.053 in a circuit court, andmay 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 maximumallowable by law or is unconstitutionally cruel and unusual, the appellatecourt shall direct the court from which the appeal is taken to impose thedisposition 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]
138.050Appeal from sentence on plea of guilty or no contest. (1) Except asotherwise provided in ORS 135.335, a defendant who has pleaded guilty or nocontest may take an appeal from a judgment or order described in ORS 138.053only 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 circuitcourt for the county.
(3)On appeal under subsection (1) of this section, the appellate court shallconsider 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 themaximum allowable by law or is unconstitutionally cruel and unusual, theappellate court shall direct the court from which the appeal is taken to imposethe 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]
138.053Judgments 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 theappeal provisions and limitations on review under ORS 138.040 and 138.050 ifthe 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 sentencesuspension.
(2)A disposition described under subsection (1) of this section is not subject toappeal after the expiration of the time specified in ORS 138.071 for appealingfrom the judgment or order imposing it, except as may be provided in ORS138.510 to 138.680.
(3)Notwithstanding ORS 138.040 and 138.050, upon an appeal from a judgment ororder described in subsection (1)(c) to (e) of this section, the appellatecourt may review the order that extended the period of the defendant’sprobation, imposed or modified a condition of the defendant’s probation orsentence suspension or revoked the defendant’s probation or sentence suspensionif the defendant shows a colorable claim of error in the proceeding from whichthe appeal is taken. [1989 c.849 §3; 1993 c.14 §16; 2001 c.644 §2; 2003 c.737 §101]
138.057Appeal from judgment involving violation. (1)(a) If a justice court ormunicipal court has become a court of record under ORS 51.025 or 221.342, anappeal from a judgment involving a violation shall be as provided in ORSchapter 19 for appeals from judgments entered by circuit courts, except thatthe standard of review is the same as for an appeal from a judgment in aproceeding involving a misdemeanor or felony. If a justice court or municipalcourt has not become a court of record under ORS 51.025 or 221.342, the appealfrom a judgment involving a violation entered by the justice court or municipalcourt may be taken to the circuit court for the county in which the justicecourt or municipal court is located. An appeal to a circuit court must be takenin the manner provided in this subsection.
(b)Within 30 days after the entry of the judgment by the justice court ormunicipal court, a party who wishes to appeal the decision must serve a copy ofthe notice of appeal on the adverse party and must file the original notice ofappeal with the justice court or municipal court along with proof of service onthe adverse party or an acknowledgment of service signed by the adverse party.
(c)If the appeal is made by the defendant