138.045 Appeal
by state. (1) The
state 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) An order made
prior to trial dismissing or setting aside one or more counts in the accusatory
instrument;
(b) An order
allowing a demurrer;
(c) An order
arresting the judgment;
(d) An order made
prior to trial suppressing evidence;
(e) An order made
prior to trial for the return or restoration of things seized;
(f) For a felony
committed on or after November 1, 1989, a judgment, amended judgment or
corrected judgment of conviction;
(g) For any
felony, a judgment, amended judgment, supplemental judgment, corrected judgment
or post-judgment order, that denied restitution or awarded less than the amount
of restitution requested by the state;
(h) An order or
judgment in a probation revocation hearing finding that a defendant who was
sentenced to probation under ORS 137.712 has not violated a condition of
probation by committing a new crime;
(i) An order made
after a guilty finding dismissing or setting aside one or more counts in the
accusatory instrument; or
(j) An order
granting a new trial.
(2)
Notwithstanding subsection (1) of this section, when the state chooses to
appeal an order described in subsection (1)(a), (b) or (d) of this section, the
state shall take the appeal to the Supreme Court if the defendant is charged
with murder or aggravated murder. [Formerly 138.060]
138.050 [Amended by 1969 c.198 §63; 1973
c.836 §275a; 1975 c.611 §23; 1977 c.372 §14; 1985 c.342 §20; 1985 c.348 §2;
1989 c.849 §5; 1995 c.658 §78; 1999 c.134 §3; 1999 c.788 §47; 2001 c.644 §1;
repealed by 2017 c.529 §26]
Notes of Decisions
Cited in
25
cases (
19 in the last 5 years), 1999–2026 · leading case:
State v. Jackson, 498 P.3d 788 (Or. 2021).
State v. Jackson, 498 P.3d 788 (Or. 2021).
· cites it 9× “The state filed a direct interlocutory appeal under ORS 138.045 to challenge the trial court’s order.”
v. Thompson, 2021 CO 15 (Colo. 2021).
“22, § 1053 (5) (2020) (interlocutory appeal allowed “where appellate review of the issue would be in the best interests of justice”); Or. Rev. Stat. § 138.045 (1)(d) (2020) (prosecution may appeal any suppression order).”
State v. Oatney, 508 P.3d 482 (Or. 2022).
· cites it 8× “The state appealed the trial court’s pretrial order under ORS 138.045, which permits the state to directly appeal pretrial orders suppressing evidence when the defendant is charged with murder or aggravated murder.”
State v. Cannon, 450 P.3d 567 (Or. Ct. App. 2019).
· cites it 2× “The state now appeals that ruling, ORS 138.045 (1)(d), assigning error to the trial court’s grant of defendant’s motion to suppress.”
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“105 (governing reviewability in defendants’ appeals); ORS 138.045 (govern- ing appeals by the state); ORS 138.”
State v. Iseli, 458 P.3d 653 (Or. 2020).
“060(1)(c) (2015), amended and renumbered as ORS 138.045(1)(d) (2017). 158 State v. Iseli any type of warrant.”
State v. Moala, 511 P.3d 1127 (Or. Ct. App. 2022).
· cites it 4× “Defendant maintains that we do not have jurisdiction to consider the state’s appeal because ORS 138.045(1)(d), the statute under which the state appeals, does not authorize the appeal.”
State v. Wolfe, 486 P.3d 748 (Or. 2021).
· cites it 3× “The state filed an interlocutory appeal pursuant to ORS 138.045(1)(a), which permits the state to appeal from “[a]n order made prior to trial dismissing or setting aside one or more counts in the accusatory instrument.”
The PEOPLE of the State of Colorado v. Asha Adolphus THOMPSON, 500 P.3d 1075 (Colo. 2021).
“22, § 1053 (5) ( 2020 ) ( interlocutory appeal allowed "where appellate review of the issue would be in the best interests of justice" ) ; Or. Rev. Stat. § 138.045 (1) (d) ( 2020 ) ( prosecution may appeal any suppression order ) .”
State v. Acosta, 489 P.3d 608 (Or. Ct. App. 2021).
· cites it 2× “Viewed through that lens, the state argues that its “proof of the iden- tifying marks on the messages tying them to defendant, the 1 Defendant moved to dismiss the state’s appeal on the ground that ORS 138.045(1) only authorizes an appeal from the denial of a motion to suppress…”
State v. Smith, 543 P.3d 1258 (Or. Ct. App. 2024).
““(b) A defendant is not entitled to relief under this sub- section for failure to file timely notice of cross-appeal when the state appeals pursuant to ORS 138.045(1)(d). “(c) The request for leave to file a notice of appeal after the time limits prescribed in subsections (1) to…”
State v. Kilby, 373 Or. 557 (Or. 2025).
· cites it 3× “The trial court granted defendant’s pretrial motion to suppress the statements on that basis, and the state pursued an imme- diate and direct appeal to this court, as authorized by ORS 138.045(1)(d), (2). In response to the state’s appeal, defen- dant continues to argue that the…”
— Or. Rev. Stat. § 138.045(1) — 1 case
State v. Acosta, 489 P.3d 608 (Or. Ct. App. 2021).
“Viewed through that lens, the state argues that its “proof of the iden- tifying marks on the messages tying them to defendant, the 1 Defendant moved to dismiss the state’s appeal on the ground that ORS 138.045(1) only authorizes an appeal from the denial of a motion to suppress…”
— Or. Rev. Stat. § 138.045(1)(a) — 2 cases
State v. Wolfe, 486 P.3d 748 (Or. 2021).
“The state filed an interlocutory appeal pursuant to ORS 138.045(1)(a), which permits the state to appeal from “[a]n order made prior to trial dismissing or setting aside one or more counts in the accusatory instrument.”
— Or. Rev. Stat. § 138.045(1)(b) — 1 case
— Or. Rev. Stat. § 138.045(1)(c) — 1 case
— Or. Rev. Stat. § 138.045(1)(d) — 18 cases
State v. Jackson, 498 P.3d 788 (Or. 2021).
“The state filed a direct interlocutory appeal under ORS 138.045 to challenge the trial court’s order.”
State v. Iseli, 458 P.3d 653 (Or. 2020).
“060(1)(c) (2015), amended and renumbered as ORS 138.045(1)(d) (2017). 158 State v. Iseli any type of warrant.”
State v. Cannon, 450 P.3d 567 (Or. Ct. App. 2019).
“The state now appeals that ruling, ORS 138.045 (1)(d), assigning error to the trial court’s grant of defendant’s motion to suppress.”
State v. Oatney, 508 P.3d 482 (Or. 2022).
“The state appealed the trial court’s pretrial order under ORS 138.045, which permits the state to directly appeal pretrial orders suppressing evidence when the defendant is charged with murder or aggravated murder.”
State v. Moala, 511 P.3d 1127 (Or. Ct. App. 2022).
“Defendant maintains that we do not have jurisdiction to consider the state’s appeal because ORS 138.045(1)(d), the statute under which the state appeals, does not authorize the appeal.”
— Or. Rev. Stat. § 138.045(1)(i) — 1 case
— Or. Rev. Stat. § 138.045(1)(j) — 1 case
— Or. Rev. Stat. § 138.045(2) — 9 cases
State v. Jackson, 498 P.3d 788 (Or. 2021).
“The state filed a direct interlocutory appeal under ORS 138.045 to challenge the trial court’s order.”
State v. Oatney, 508 P.3d 482 (Or. 2022).
“The state appealed the trial court’s pretrial order under ORS 138.045, which permits the state to directly appeal pretrial orders suppressing evidence when the defendant is charged with murder or aggravated murder.”
State v. Wolfe, 486 P.3d 748 (Or. 2021).
“The state filed an interlocutory appeal pursuant to ORS 138.045(1)(a), which permits the state to appeal from “[a]n order made prior to trial dismissing or setting aside one or more counts in the accusatory instrument.”
State v. Kilby, 373 Or. 557 (Or. 2025).
“The trial court granted defendant’s pretrial motion to suppress the statements on that basis, and the state pursued an imme- diate and direct appeal to this court, as authorized by ORS 138.045(1)(d), (2). In response to the state’s appeal, defen- dant continues to argue that the…”
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