ORS 138.071
Time within which appeal must be taken

Text
Annotations 7

(1)

Except as provided in this section, a notice of appeal must be served and filed not later than 30 days after the judgment or order appealed from was entered in the register.

(2)

If a motion for new trial or motion in arrest of judgment is timely served and filed, a notice of appeal must be served and filed within 30 days from the earlier of the following dates:

(a)

The date of entry of the order disposing of the motion; or

(b)

The date on which the motion is deemed denied.

(3)

A defendant cross-appealing 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)

Intentionally left blank —Ed.

(a)

When an appeal is pending and the trial court enters an amended, corrected or supplemental judgment, or an amended or corrected order that is appealable under ORS 138.035 (Appeal by defendant) or 138.045 (Appeal by state) or any other statutory provision:

(A)

If the appellant intends to assign error to any part of the amended, corrected or supplemental judgment, or amended or corrected order that is appealable, the appellant shall file an amended notice of appeal from such judgment or order not later than 30 days after the appellant receives notice that such judgment or order has been entered.

(B)

If the appellant does not intend to assign error to any part of the amended, corrected or supplemental judgment, or amended or corrected order that is appealable, the appellant need only file a notice of intent to proceed with the appeal not later than 30 days after the appellant receives notice that such judgment or order has been entered. The notice of intent to proceed is not jurisdictional.

(b)

As used in this subsection, “appellant” means the attorney of record in the appellate court for the appellant or, if the appellant is not represented by an attorney, the appellant personally.

(5)

Intentionally left blank —Ed.

(a)

Upon motion of a defendant, the Court of Appeals shall grant the defendant leave to file a notice of appeal after the time limits described in subsections (1) to (4) of this section if:

(A)

The defendant, by clear and convincing evidence, shows that the failure to file a timely notice of appeal is not attributable to the defendant personally; and

(B)

The defendant shows a colorable claim of error in the proceeding from which the appeal is taken.

(b)

A defendant is not entitled to relief under this subsection for failure to file timely notice of cross-appeal when the state appeals pursuant to ORS 138.045 (Appeal by state) (1)(d).

(c)

The request for leave to file a notice of appeal after the time limits prescribed in subsections (1) to (3) of this section must be filed no later than 90 days after entry of the order or judgment being appealed. The request for leave to file a notice of appeal after the time limit prescribed in subsection (4) of this section must be filed no later than 90 days after the party receives notice that the order or judgment has been entered. A request for leave under this subsection must be accompanied by the notice of appeal, may be filed by mail and is deemed filed on the date of mailing if the request is mailed as provided in ORS 19.260 (Filing by mail or delivery).

(d)

The court may 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 is a bar to post-conviction relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) on the same ground, unless the court provides otherwise. [1971 c.565 §21 (enacted in lieu of 138.070); 1977 c.752 §3; 1985 c.282 §1; 1985 c.734 §§17,17a; 1987 c.852 §1; 2001 c.870 §7; 2003 c.288 §2; 2007 c.547 §2; 2009 c.11 §10; 2013 c.153 §2; 2017 c.529 §7]

Source: Section 138.071 — Time within which appeal must be taken, https://www.oregonlegislature.gov/bills_laws/ors/ors138.html.

Notes of Decisions

Thirty-day filing requirement of this section was applicable where state, lacking statutory right to appeal, brought mandamus action challenging judge’s granting of new trial. State ex rel Redden v. Van Hoomissen, 281 Or 647, 576 P2d 355 (1978)

Judgments and orders in criminal cases become effective for purposes of commencing appeals period when entered in journal by county clerk. State v. Panichello, 71 Or App 519, 692 P2d 720 (1984)

Delayed appeal from juvenile court disposition order placing juvenile under jurisdiction of juvenile court is not available because such order is not “judgment of conviction.” State ex rel Juv. Dept. v. Hardy, 93 Or App 584, 763 P2d 406 (1988), Sup Ct review denied

Where court granted motion for new trial after date motion was conclusively deemed denied under ORS 136.535, deadline for state to file appeal from new trial order was measured from date motion was deemed denied. State v. Lesley, 173 Or App 232, 21 P3d 190 (2001)

Where defendant is represented concurrently by trial and appellate counsel, that trial counsel rather than appellate counsel received actual notice of trial court’s entry of supplemental judgment is sufficient to begin 30-day period of time during which defendant must file notice of appeal. State v. Mullins, 352 Or 343, 284 P3d 1139 (2012)

COMPLETED CITATIONS: Portland v. Olson, 4 Or App 380, 481 P2d 641 (1971), Sup Ct review denied

Law Review Citations

51 OLR 652, 653, 655 (1972)

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

ORS 138.071 Time within which appeal must be taken

(1)

(2)

(a)

(b)

(3)

(4)

(a)

(A)

(B)

(b)

(5)

(a)

(A)

(B)

(b)

(c)

(d)

(e)

Notes of Decisions

Law Review Citations

ORS 138.071
Time within which appeal must be taken