138.035 Appeal
by defendant.
(1)(a) A defendant may take an appeal from the circuit court, or from a
municipal court or a justice court that has become a court of record under ORS
51.025 or 221.342, to the Court of Appeals from a judgment:
(A) Conclusively
disposing of all counts in the accusatory instrument or conclusively disposing
of all counts severed from other counts;
(B) Convicting
the defendant of at least one count; and
(C) Imposing
sentence on all counts of which the defendant was convicted.
(b) For the
purposes of this subsection, if the trial court merges a determination of guilt
on one count with a determination of guilt on another count and imposes a
sentence on the merged determinations of guilt, the trial court has
conclusively disposed of the merged counts.
(2)(a) A
defendant may appeal a judgment ordering payment of restitution but not
specifying the amount of restitution.
(b) A defendant
may appeal a supplemental judgment awarding restitution.
(3) A defendant
may appeal a judgment or order extending a period of probation, imposing a new
or modified condition of probation or of sentence suspension, or imposing or
executing a sentence upon revocation of probation or sentence suspension.
(4) A defendant
may appeal an amended or corrected judgment entered after the judgment of
conviction and sentence.
(5) A defendant
may cross-appeal when the state appeals pursuant to ORS 138.045 (1)(d). [2017
c.529 §3]
138.040 [Amended by 1959 c.558 §36; 1963
c.207 §1; 1969 c.198 §62; 1971 c.565 §19; 1977 c.372 §13; 1977 c.752 §1; 1985
c.348 §1; 1989 c.849 §4; 2001 c.870 §6; repealed by 2017 c.529 §26]
Notes of Decisions
Cited in
21
cases (
17 in the last 5 years), 2018–2026 · leading case:
State v. Hunt, 476 P.3d 530 (Or. Ct. App. 2020).
State v. Hunt, 476 P.3d 530 (Or. Ct. App. 2020).
· cites it 22× “” In defen- dant’s view, if the legislature had intended to limit the appealability of probation violation orders when it enacted ORS 138.”
State v. Bates, 500 P.3d 746 (Or. Ct. App. 2021).
· cites it 5× “Cite as 315 Or App 402 (2021) 405 probation to keep the case from becoming moot, that would have been impossible because, under ORS 138.035(3),2 that judgment was not appealable.”
State v. Colgrove, 521 P.3d 456 (Or. 2022).
· cites it 2× “See ORS 138.035 (governing appeals by defendants); ORS 138.”
State v. Flores, 505 P.3d 507 (Or. Ct. App. 2022).
· cites it 4× “ORS 138.035(3) allows a defendant to appeal a judgment extend- ing probation or imposing a new or modified condition of pro- bation.”
State v. Colby, 433 P.3d 447 (Or. Ct. App. 2018).
“"); ORS 138.035(1) (authorizing an appeal from a judgment by a defendant); ORS 138.”
State v. Kreis, 451 P.3d 954 (Or. 2019).
“Under ORS 138.035(1), “[a] defendant may take an appeal from * * * a municipal court * * * that has become a court of record * * * to the Court of Appeals[.”
State v. Oatney, 508 P.3d 482 (Or. 2022).
· cites it 3× “105(11)(b) (“The fail- ure to file a cross-appeal under ORS 138.035 (5) does not waive a defendant’s right to assign error to a particular ruling of the trial court on appeal from a judgment.”
State v. Logston, 374 Or. 101 (Or. 2025).
· cites it 2× “585(2)(c) (stating that certain crimes will be treated as felonies unless, upon revocation of probation, “the court imposes a sentence of imprisonment other than to the legal and physical custody of the Department of Corrections”).”
State v. Mott, 527 P.3d 758 (Or. 2023).
“6 According to defendant, that is so because, in a noncapital case, a direct appeal is a statutory right that is exercised voluntarily and, for that reason, the right can be waived in the absence of a legisla- tively imposed limitation. See ORS 138.020 (providing that “[e]ither…”
State v. McGee, 437 P.3d 238 (Or. Ct. App. 2019).
“529, § 26; see also ORS 138.035 (current statute setting out what a criminal defendant may appeal).”
State v. Dunham, 560 P.3d 736 (Or. Ct. App. 2024).
“” In the state’s view, defendant’s motions are “intimately bound up with his underlying criminal proceedings” and therefore are governed by ORS 138.035, i.e., the statute governing direct appeals in criminal cases.”
State v. McGowan, 345 Or. App. 652 (Or. Ct. App. 2025).
· cites it 5× “105(1), is limited to circumstances described by ORS 138.035, which provides that a defendant may appeal from a judgment of conviction and sentence; a judgment imposing restitution; a judgment extending, modifying, or revoking probation; or an amended judgment of conviction and…”
— Or. Rev. Stat. § 138.035(1) — 6 cases
State v. Colby, 433 P.3d 447 (Or. Ct. App. 2018).
“"); ORS 138.035(1) (authorizing an appeal from a judgment by a defendant); ORS 138.”
State v. Kreis, 451 P.3d 954 (Or. 2019).
“Under ORS 138.035(1), “[a] defendant may take an appeal from * * * a municipal court * * * that has become a court of record * * * to the Court of Appeals[.”
State v. McGowan, 345 Or. App. 652 (Or. Ct. App. 2025).
“105(1), is limited to circumstances described by ORS 138.035, which provides that a defendant may appeal from a judgment of conviction and sentence; a judgment imposing restitution; a judgment extending, modifying, or revoking probation; or an amended judgment of conviction and…”
— Or. Rev. Stat. § 138.035(1)(a) — 1 case
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“See ORS 138.035 (governing appeals by defendants); ORS 138.”
— Or. Rev. Stat. § 138.035(1)(a)(A) — 1 case
— Or. Rev. Stat. § 138.035(3) — 7 cases
State v. Hunt, 476 P.3d 530 (Or. Ct. App. 2020).
“” In defen- dant’s view, if the legislature had intended to limit the appealability of probation violation orders when it enacted ORS 138.”
State v. Bates, 500 P.3d 746 (Or. Ct. App. 2021).
“Cite as 315 Or App 402 (2021) 405 probation to keep the case from becoming moot, that would have been impossible because, under ORS 138.035(3),2 that judgment was not appealable.”
State v. Flores, 505 P.3d 507 (Or. Ct. App. 2022).
“ORS 138.035(3) allows a defendant to appeal a judgment extend- ing probation or imposing a new or modified condition of pro- bation.”
State v. Logston, 374 Or. 101 (Or. 2025).
“585(2)(c) (stating that certain crimes will be treated as felonies unless, upon revocation of probation, “the court imposes a sentence of imprisonment other than to the legal and physical custody of the Department of Corrections”).”
— Or. Rev. Stat. § 138.035(4) — 1 case
State v. Hunt, 476 P.3d 530 (Or. Ct. App. 2020).
“” In defen- dant’s view, if the legislature had intended to limit the appealability of probation violation orders when it enacted ORS 138.”
— Or. Rev. Stat. § 138.035(5) — 1 case
State v. Oatney, 508 P.3d 482 (Or. 2022).
“105(11)(b) (“The fail- ure to file a cross-appeal under ORS 138.035 (5) does not waive a defendant’s right to assign error to a particular ruling of the trial court on appeal from a judgment.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.