ORS 138.105
Appeal by defendant


(1)

On appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the provisions of this section.

(2)

The appellate court has authority to review only questions of law appearing on the record.

(3)

Except as otherwise provided in this section, the appellate court has authority to review any intermediate decision of the trial court.

(4)

On appeal from a judgment of conviction and sentence, the appellate court has authority to review:

(a)

The denial of a motion for new trial based on juror misconduct or newly discovered evidence; and

(b)

The denial of a motion in arrest of judgment.

(5)

The appellate court has no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest, except that:

(a)

The appellate court has authority to review the trial court’s adverse determination of a pretrial motion reserved in a conditional plea of guilty or no contest under ORS 135.335 (Pleading by defendant).

(b)

The appellate court has authority to review whether the trial court erred by not merging determinations of guilt of two or more offenses, unless the entry of separate convictions results from an agreement between the state and the defendant.

(6)

On appeal from a judgment ordering payment of restitution but not specifying the amount of restitution, the appellate court has no authority to review the decision to award restitution.

(7)

Except as otherwise provided in subsections (8) and (9) of this section, the appellate court has authority to review any sentence to determine whether the trial court failed to comply with requirements of law in imposing or failing to impose a sentence.

(8)

Except as otherwise provided in subsection (9) of this section, for a sentence imposed on conviction of a felony committed on or after November 1, 1989:

(a)

The appellate court has no authority to review:

(A)

A 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.

(b)

If the trial court imposed a sentence that departs from the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission, the appellate court’s authority to review is limited to whether the trial 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.

(c)

Notwithstanding paragraph (a) of this subsection, the appellate court has authority to review whether the sentencing court erred:

(A)

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.

(B)

In imposing or failing to impose a minimum sentence prescribed by ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) or 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court).

(9)

The appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant.

(10)

Intentionally left blank —Ed.

(a)

On appeal from a corrected or amended judgment that is entered before expiration of the applicable period under ORS 138.071 (Time within which appeal must be taken) (1) or (2) during which the original judgment can be appealed, the appellate court has authority to review the judgment, including the corrections or amendments, as provided in this section.

(b)

On appeal from a corrected or amended judgment that is entered after expiration of the applicable period under ORS 138.071 (Time within which appeal must be taken) (1) or (2) during which the original judgment was or could have been appealed, the appellate court has authority to review, as provided in this section, only the corrected or amended part of the judgment, any part of the judgment affected by the correction or amendment, or the trial court’s decision under ORS 137.172 (Entry of corrected judgment) not to correct or amend the judgment.

(c)

As used in this subsection, “judgment” means any appealable judgment or order.

(11)

Intentionally left blank —Ed.

(a)

On a defendant’s cross-appeal under ORS 138.035 (Appeal by defendant) (5), the appellate court may, in its discretion, limit review to any decision by the trial court that is inextricably linked, either factually or legally, to the state’s appeal.

(b)

The failure to file a cross-appeal under ORS 138.035 (Appeal by defendant) (5) does not waive a defendant’s right to assign error to a particular ruling of the trial court on appeal from a judgment. [2017 c.529 §13]

Source: Section 138.105 — Appeal by defendant, https://www.­oregonlegislature.­gov/bills_laws/ors/ors138.­html.

Notes of Decisions

Where defendant pleaded no contest, court rejected defendant’s challenge to conviction because this section precludes, subject to two exceptions, appellate review of conviction resulting from plea of guilty or no contest. State v. Merrill, 311 Or App 487, 492 P3d 722 (2021), 314 Or App 460, 495 P3d 219 (2021) (former opinion adhered to as modified); State v. Redick, 312 Or App 260, 491 P3d 87 (2021)

138.005
Definitions for ORS 138.010 to 138.310
138.010
Mode of review
138.015
Statutes applicable to appeals
138.020
Who may appeal
138.030
Parties designated “appellant” and “respondent”
138.035
Appeal by defendant
138.045
Appeal by state
138.052
Appeal from judgment of conviction and sentence of death
138.057
Appeal from judgment involving violation
138.065
Appeal from judgment or order deciding special statutory proceeding
138.071
Time within which appeal must be taken
138.081
Service and filing of notice of appeal
138.085
Content requirements for certain notices of appeal
138.090
Signature to notice of appeal
138.105
Appeal by defendant
138.115
Appeal by state
138.210
Failure to file brief by appellant
138.225
Summary affirmation
138.227
Joint motion to vacate and remand
138.255
Court of Appeals certification of appeal to Supreme Court in lieu of disposition
138.257
Determination on appeal
138.261
Time within which certain appeals must be decided
138.275
Notice to parties concerning modified judgment or order or supplemental judgment
138.285
Order staying execution of sentence
138.295
Stay of judgment or order on appeal by state
138.305
Delivery of defendant under sentence of imprisonment to intake center
138.310
Notice to court below when public defense services executive director certifies costs, expenses or compensation
138.480
Public Defense Services Commission to provide representation for prisoner in proceeding before appellate court
138.500
Appointment of counsel and furnishing of transcript for appellant without funds
138.504
Waiver of counsel
138.510
Persons who may file petition for relief
138.520
Relief which court may grant
138.525
Dismissal of meritless petition
138.527
Frivolous petition or response
138.530
When relief must be granted
138.540
Petition for relief as exclusive remedy for challenging conviction
138.550
Availability of relief as affected by prior judicial proceedings
138.560
Procedure upon filing petition for relief
138.570
Who shall be named as defendant
138.580
Petition
138.585
Access to confidential jury records
138.590
Petitioner may proceed as a financially eligible person
138.610
Pleadings
138.615
Disclosure of witness information
138.620
Hearing
138.622
Appearance by communication device
138.625
Victim testimony
138.627
Victim’s rights
138.630
Evidence of events occurring at trial of petitioner
138.640
Judgment
138.650
Appeal
138.660
Summary affirmation of judgment
138.665
Remand for reconsideration of judgment or order
138.670
Admissibility, at new trial, of testimony of witness at first trial
138.680
Short title
138.686
Automatic stay of sentence of death for federal appeal and state post-conviction relief
138.688
Definitions
138.690
Commencement of DNA testing proceedings
138.692
Motion for DNA testing
138.694
Appointed counsel
138.696
Test results
138.697
Appeal of court order
138.698
Effect of setting aside conviction on plea agreement
138.700
Entry of unidentified profile into DNA databases
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