Appeals

ORS 138.640
Judgment

  • enforcement


(1)

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 (Relief which court may grant). The judgment must clearly state the grounds on which the cause was determined, and whether a state or federal question was presented and decided.

(2)

If the court grants the petitioner relief, the judgment is not enforceable in the petitioner’s favor until:

(a)

The petitioner causes a certified copy of the judgment to be entered in the circuit court in which the petitioner’s conviction and sentence were rendered; and

(b)

The petitioner serves a certified copy of the judgment on the district attorney of the county in which the petitioner’s conviction and sentence were rendered. [1959 c.636 §14; 2003 c.576 §245; 2007 c.193 §2]

Notes of Decisions

Where petitioner sought post-conviction relief contending he had received invalid consecutive sentences and post-conviction court dismissed petition and entered order relying on grounds neither presented to court nor responsive to petition, remand to Court of Appeals for consideration to enter proper final order was appropriate. Wilson v. Maass, 305 Or 434, 752 P2d 840 (1988)

Where document from which appeal was attempted in post-conviction case did not make final disposition of the case, it did not meet requirements of this section and case was remanded for disposition. Stelljes v. Maass, 306 Or 655, 761 P2d 925 (1988)

Judgment denying relief must (1) identify claims for relief and make separate rulings on each claim; (2) declare whether denial is based on petitioner's failure to follow available state procedures or to failure establish merits of claim; and (3) make legal basis for denial apparent. Datt v. Hill, 347 Or 672, 227 P3d 714 (2010)

§§ 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