ORS 138.650
Appeal

(1)

Either the petitioner or the defendant may appeal to the Court of Appeals within 30 days after the entry of a judgment on a petition pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title). The manner of taking the appeal and the scope of review by the Court of Appeals and the Supreme Court shall be the same as that provided by law for appeals in criminal actions, except that:

(a)

The trial court may provide that the transcript contain only such evidence as may be material to the decision of the appeal; and

(b)

With respect to ORS 138.081 (Service and filing of notice of appeal) (1), if petitioner appeals, petitioner shall cause the notice of appeal to be served on the attorney for defendant, and, if defendant appeals, defendant shall cause the notice of appeal to be served on the attorney for petitioner or, if petitioner has no attorney of record, on petitioner.

(2)

Intentionally left blank —Ed.

(a)

Upon motion of the petitioner, the Court of Appeals shall grant the petitioner leave to file a notice of appeal after the time limit described in subsection (1) of this section if:

(A)

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

(B)

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

(b)

The request for leave to file a notice of appeal after the time limit described in subsection (1) of this section shall be filed no later than 90 days after entry of the judgment from which the petitioner seeks to appeal and shall be accompanied by the notice of appeal sought to be filed. A request for leave under this subsection may be filed by mail. The date of filing shall be the date of mailing if the request is mailed as provided in ORS 19.260 (Filing by mail or delivery).

(c)

The Court of Appeals may not grant relief under this subsection unless the defendant has received notice of and an opportunity to respond to the petitioner’s request for relief.

(3)

A party cross-appealing shall serve and file the notice of cross-appeal:

(a)

Within 10 days of the expiration of the time allowed in subsection (1) of this section; or

(b)

If the petitioner’s notice of appeal is filed pursuant to subsection (2) of this section, within 10 days of the expiration of the time allowed in subsection (2) of this section.

(4)

An appeal under this section taken by the defendant stays the effect of the judgment. If the petitioner is incarcerated, the trial court may stay the petitioner’s sentence pending the defendant’s appeal and order conditional release or security release, in accordance with ORS 135.230 (Definitions for ORS 135.230 to 135.290) to 135.290 (Punishment by contempt of court), only if:

(a)

The post-conviction court’s judgment vacates the judgment of conviction or reduces the sentence or sentences imposed upon conviction;

(b)

The petitioner has completed any other sentence of incarceration to which the petitioner is subject; and

(c)

The petitioner otherwise would be entitled to immediate release from incarceration under the court’s judgment.

(5)

In an appeal under this section or to the United States Supreme Court, the Attorney General shall represent the defendant. [1959 c.636 §18; 1963 c.557 §1; 1969 c.198 §72; 1971 c.565 §26; 1987 c.852 §3; 2003 c.576 §246; 2007 c.193 §1; 2019 c.399 §4]

Source: Section 138.650 — Appeal, https://www.­oregonlegislature.­gov/bills_laws/ors/ors138.­html.

Notes of Decisions

Factfinding by Court of Appeals in post-conviction proceedings is contrary to this section. Hartzog v. Keeney, 304 Or 57, 742 P2d 600 (1987)

Appellate review in post-conviction proceeding is limited to questions of law. Yeager v. Maass, 93 Or App 561, 763 P2d 184 (1988), Sup Ct review denied

“Manner of taking appeal” refers to procedures for filing and prosecution of appeal, not to taxation of appellate costs and disbursements. Schelin v. Maass, 147 Or App 351, 936 P2d 988 (1997), Sup Ct review denied

Good cause exception (ORS 138.071) to 30-day time limit for filing notice of appeal in criminal case is not available for appeal from denial of post-conviction relief. Felkel v. Thompson, 157 Or App 218, 970 P2d 657 (1998)

Delayed appeal is not available as remedy for claim of inadequate assistance of post-conviction relief counsel. Miller v. Baldwin, 176 Or App 500, 32 P3d 234 (2001)

In post-conviction appeal, reviewing court may reverse, affirm or modify judgment of post-conviction court only if reviewing court finds error in issue appearing upon record. Pratt v. Armenakis, 199 Or App 448, 112 P3d 371 (2005), on reconsideration 201 Or App 217, 118 P3d 821 (2005), Sup Ct review denied

COMPLETED CITATIONS: Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied

Law Review Citations

51 OLR 652 (1972)

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
Green check means up to date. Up to date

Current through early 2024

§ 138.650’s source at oregon​.gov