USA Statutes : oregon
Title : TITLE 14 PROCEDURE IN CRIMINAL MATTERS GENERALLY
Chapter : Chapter 138 Appeals; Post-Conviction Relief

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.(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 defendant’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. 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. 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] (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] (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
defendant’s probation, imposed or modified a condition of the defendant’s
probation or sentence suspension or revoked the defendant’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] (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 officer’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. (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] (1) Except as
provided in subsections (2), (3) and (4) of this section, the notice of
appeal shall 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 the notice of appeal shall 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 shall 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)(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 (3) 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 shall not be 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 shall be
filed no later than 90 days after entry of the order or judgment being
appealed 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 and
shall be 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 defendant’s
request for relief.

(e) The denial of a motion under paragraph (a) of this subsection
shall be 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] (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 plaintiff’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]
(1) 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
court’s own motion after written notice to all the parties. If a
sentencing court enters an amended judgment under this section, the court
shall immediately forward a copy of the amended judgment to the appellate
court. Any modification of the appeal necessitated by the amended
judgment shall be made in the manner specified by rules adopted by the
appellate court.

(2) A judgment that orders payment of restitution but does not
specify the amount of restitution imposed is final for the purpose of
appealing from the judgment. 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. 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] 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]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]At the expiration of the time appointed for the
publication, on filing an affidavit thereof with the clerk, the appeal
becomes perfected.(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]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 defendant’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] 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](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] 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. 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](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 court’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 court’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. 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 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 respondent’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] (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]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. The appellate court may
reverse, affirm or modify the judgment or order appealed from and shall,
if necessary or proper, order a 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](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] (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]
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]When the
public defense services executive director pays costs, expenses or
compensation under ORS 138.500 (4) 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]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](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 court’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, furnished to the person. The following
apply to a request under this subsection:

(a) The request shall be in writing and, shall include a brief
statement of the assets, liabilities and income in the previous year of
the person.

(b) If, based upon a request under paragraph (a) of this
subsection, the public defense services executive director finds that the
person is unable to pay for the transcript, the public defense services
executive director shall have furnished to the person that portion of the
transcript as may be material to the decision on appeal, if the public
defense services executive director finds that the transcript or portion
thereof is necessary.

(c) The cost of the transcript under paragraph (b) 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 a person for whom counsel
has been appointed shall by similar procedure recover the cost of briefs,
any other expense of the review and compensation for counsel.

(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 director’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] (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 defendant’s legal advisor and, if
the defendant is financially eligible for appointed counsel at state
expense, may appoint an attorney as the defendant’s legal advisor.

(3) If the court declines to accept a defendant’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 (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 person’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
Oregon appellate courts.

(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] 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] (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] (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 party’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.(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
petitioner’s conviction, or in the appellate review thereof, of
petitioner’s rights under the Constitution of the United States, or under
the Constitution of the State of Oregon, or both, and which denial
rendered the conviction void.

(b) Lack of jurisdiction of the court to impose the judgment
rendered upon petitioner’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](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]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
petitioner’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.
Petitioner’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](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 petitioner’s conviction and sentence
was rendered. Except as otherwise provided in ORS 138.590, the petitioner
shall pay a $25 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 petitioner’s case to be transferred to
the circuit court for the county in which petitioner’s conviction and
sentence were rendered. The court’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 court’s order is not
reviewable by any court of this state.

(6) In addition to the fee provided for in subsection (1) of this
section, for the period commencing September 1, 2003, and ending December
31, 2006, a petitioner shall pay a surcharge of $8 at the time of filing
a petition under this section. [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]Note: Section 97, chapter 702, Oregon Laws 2005, provides:

Sec. 97. All moneys collected on or after July 1, 2005, from the
surcharges imposed by the amendments to ORS 21.010, 21.040, 21.110,
21.111, 21.114, 21.270, 21.275, 21.310, 21.325, 34.340, 36.520, 36.615,
46.570, 105.130, 107.434, 108.130, 112.820, 114.515, 135.921, 138.560,
419B.555 and 813.240 by sections 2, 6, 10, 14, 18, 22, 26, 30, 34, 38,
42, 46, 50, 54, 58, 62, 66, 70, 74, 78, 82 and 86 of this 2005 Act shall
be deposited in the General Fund. [2005 c.702 §97]Note: The amendments to 138.560 by section 79, chapter 702, Oregon
Laws 2005, become operative January 1, 2007. See section 80, chapter 702,
Oregon Laws 2005. The text that is operative on and after January 1,
2007, is set forth for the user’s convenience.

138.560. (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 petitioner’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 petitioner’s case to be transferred to
the circuit court for the county in which petitioner’s conviction and
sentence were rendered. The court’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 court’s order is not
reviewable by any court of this state. 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 in the proceedings. Whenever the defendant is some other
official charged with the confinement of petitioner, the district
attorney of the county wherein the petitioner is imprisoned shall be the
attorney for the defendant. Whenever petitioner is not imprisoned,
counsel for the State of Oregon as defendant shall be the district
attorney of the county in which petitioner’s conviction and sentence were
rendered. Whenever the petitioner is released from imprisonment during
the pendency of any proceedings pursuant to ORS 138.510 to 138.680, the
State of Oregon shall be substituted as defendant. Upon such
substitution, counsel for the original defendant shall continue to serve
as counsel for the substituted defendant. [1959 c.636 §7; 1983 c.505 §15;
1987 c.320 §45] 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]
(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 petitioner’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
petitioner’s case transferred to another circuit court as provided in ORS
138.560 (4), the matter of petitioner’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 counsel’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 counsel’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 director’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 petitioner’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] 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] (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 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] 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
petitioner’s counsel during the proceedings. [2003 c.261 §3] 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] 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. [1959 c.636 §14; 2003 c.576 §245] 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:

(1) The trial court may provide that the transcript contain only
such evidence as may be material to the decision of the appeal; and

(2) 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. [1959 c.636 §18;
1963 c.557 §1; 1969 c.198 §72; 1971 c.565 §26; 1987 c.852 §3; 2003 c.576
§246] 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
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 respondent’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]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]ORS 138.510 to 138.680 may be cited as the
Post-Conviction Hearing Act. [1959 c.636 §21](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 defendant’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 defendant’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.

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