Appeals

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)

(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]

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)

§§ 138.510 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