Appeals

ORS 138.520
Relief which court may grant


The relief which a court may grant or order under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) 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 rearrangement, retrial, custody and release on security. [1959 c.636 §2; 1999 c.1051 §258]

Notes of Decisions

Where there was a substantial question, at the time thereof, of the petitioner's competency to waive indictment, to waive trial by jury and to enter a plea of guilty the post-conviction court shall conduct a hearing to determine whether or not the petitioner was competent at the times in question. Brady v. Calloway, 11 Or App 30, 501 P2d 72 (1972), Sup Ct review denied

Post-conviction court has authority to make release decision as part of or supplemental to relief granted and has jurisdiction to grant supplementary orders respecting release and bail even though case is on appeal. Johnson v. Maass, 98 Or App 97, 778 P2d 508 (1989)

Post-conviction relief may not be granted for attorney's failure to investigate and present alibi defense that was based on false information petitioner gave to his attorney. Johnson v. Maass, 99 Or App 693, 784 P2d 107 (1989), Sup Ct review denied

Post-conviction court may apply remedy that is just and proper to correct error identified by petitioner, notwithstanding that applied remedy may exceed scope of remedy sought by petitioner. Brock v. Baldwin, 171 Or App 188, 14 P3d 651 (2000), Sup Ct review denied

Sentencing court may not modify sentence that has already been completely served. State v. Bisby, 212 Or App 86, 157 P3d 262 (2007), Sup Ct review denied

§§ 138.510 to 138.680

Notes of Decisions

Any person who is convicted of a crime may seek relief under this section, whether or not he is in custody, regardless of whether his conviction is for a felony or misdemeanor. Morasch v. State, 261 Or 299, 493 P2d 1364 (1972)

Habeas corpus is a proper method of questioning the constitutionality of treatment accorded prisoners. Bekins v. Cupp, 274 Or 115, 545 P2d 861 (1976)

These sections afforded plain, speedy and adequate remedy in lower courts and state Supreme Court would not exercise original habeas corpus jurisdiction. Sweet v. Cupp, 640 F2d 233 (1981)

Post-conviction relief is not suspension of writ of habeas corpus; it provides different procedure but retains all necessary substantive and procedural advantages of the writ. Atkeson v. Cupp, 68 Or App 196, 680 P2d 772 (1984), Sup Ct review denied

Post-conviction relief under these sections is available to those convicted of DUII Class A traffic infractions to remedy constitutional violations. Evers v. State, 69 Or App 450, 685 P2d 1024 (1984)

Availability of post-conviction relief to persons convicted under state law but not to those convicted under municipal law does not violate Article I, section 20, or equal protection clause of Fourteenth Amendment, because persons convicted under municipal law do not constitute true class, and there is no discriminatory application of law. Hunter v. State of Oregon, 306 Or 529, 761 P2d 502 (1988)

Granting of delayed appeal authorized where necessary to rectify substantial denial of constitutional rights. State v. Macy, 316 Or 335, 851 P2d 579 (1993)

Federal constitutional principle requiring that facts that increase penalty for crime beyond statutory maximum be submitted to jury does not apply retroactively to afford post-conviction relief. Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004)

State will retroactively apply new federal rule regarding constitutionality only if rule places certain kinds of conduct beyond proscription or if procedural rule affects fundamental fairness required for accurate conviction. Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004)

Law Review Citations

68 OLR 269 (1989)


Source

Last accessed
Jun. 26, 2021