ORS 138.620


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 (Appearance by communication device) rather than in person.


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]

Notes of Decisions

Evidence, in post-conviction proceeding, that petitioner secured own appeal bond, contacted attorney following conviction and sentencing, but failed to respond to attorney's letter concerning pending appeal, was sufficient to support finding that petitioner was not denied counsel on appeal. Whitlow v. Kerner, 35 Or App 539, 581 P2d 976 (1978)

Where record showed that defendant was not informed of his rights prior to pleading guilty and there was no evidence to show that he otherwise knew what rights he waived by guilty plea, state failed to carry burden of proving that plea was voluntarily, knowingly and intelligently made. Boag v. State, 44 Or App, 605 P2d 304 (1980)

Where petitioner requests appointment of counsel pursuant to ORS 138.590, eligibility for appointment must be determined prior to hearing which finally disposes of petition. Rodacker v. State of Oregon, 79 Or App 31, 717 P2d 659 (1986)

Where merits of petition were not before court on motion to dismiss for lack of subject matter jurisdiction and court nonetheless considered merits and made factual determination that post-conviction relief was unavailable without according petitioner opportunity to present evidence or be heard otherwise on claim, court erred in dismissing on merits. McClaflin v. Wright, 101 Or App 10, 788 P2d 1027 (1990)

Completed Citations

James v. Cupp, 5 Or App 181, 482 P2d 543 (1971), Sup Ct review denied; Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), 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)


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Jun. 26, 2021