138.071 Time
within which appeal must be taken.
(1) Except as provided in this section, a notice of appeal must be served and
filed not later than 30 days after the judgment or order appealed from was
entered in the register.
(2) If a motion
for new trial or motion in arrest of judgment is timely served and filed, a
notice of appeal must be served and filed within 30 days from the earlier of
the following dates:
(a) The date of
entry of the order disposing of the motion; or
(b) The date on
which the motion is deemed denied.
(3) A defendant
cross-appealing shall serve and file the notice of cross-appeal within 10 days
of the expiration of the time allowed in subsection (1) of this section.
(4)(a) When an
appeal is pending and the trial court enters an amended, corrected or
supplemental judgment, or an amended or corrected order that is appealable
under ORS 138.035 or 138.045 or any other statutory provision:
(A) If the
appellant intends to assign error to any part of the amended, corrected or
supplemental judgment, or amended or corrected order that is appealable, the
appellant shall file an amended notice of appeal from such judgment or order
not later than 30 days after the appellant receives notice that such judgment
or order has been entered.
(B) If the
appellant does not intend to assign error to any part of the amended, corrected
or supplemental judgment, or amended or corrected order that is appealable, the
appellant need only file a notice of intent to proceed with the appeal not
later than 30 days after the appellant receives notice that such judgment or
order has been entered. The notice of intent to proceed is not jurisdictional.
(b) As used in
this subsection, “appellant” means the attorney of record in the appellate
court for the appellant or, if the appellant is not represented by an attorney,
the appellant personally.
(5)(a) Upon
motion of a defendant, the Court of Appeals shall grant the defendant leave to
file a notice of appeal after the time limits described in subsections (1) to
(4) of this section if:
(A) The
defendant, by clear and convincing evidence, shows that the failure to file a
timely notice of appeal is not attributable to the defendant personally; and
(B) The defendant
shows a colorable claim of error in the proceeding from which the appeal is
taken.
(b) A defendant
is not entitled to relief under this subsection 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 (3) of this section must be filed no later than 90 days
after entry of the order or judgment being appealed. The request for leave to
file a notice of appeal after the time limit prescribed in subsection (4) of
this section must be filed no later than 90 days after the party receives
notice that the order or judgment has been entered. A request for leave under
this subsection must be accompanied by the notice of appeal, may be filed by
mail and is deemed filed on the date of mailing if the request is mailed as
provided in ORS 19.260.
(d) The court may
not grant relief under this subsection unless the state has notice and
opportunity to respond to the defendant’s request for relief.
(e) The denial of
a motion under paragraph (a) of this subsection is a bar to post-conviction
relief under ORS 138.510 to 138.680 on the same ground, unless the court
provides otherwise. [1971 c.565 §21 (enacted in lieu of 138.070); 1977 c.752 §3;
1985 c.282 §1; 1985 c.734 §§17,17a; 1987 c.852 §1; 2001 c.870 §7; 2003 c.288 §2;
2007 c.547 §2; 2009 c.11 §10; 2013 c.153 §2; 2017 c.529 §7]
138.080 [Amended by 1959 c.558 §37; 1969
c.198 §65; 1971 c.193 §28; repealed by 1971 c.565 §22 (138.081 enacted in lieu
of 138.080)]
Notes of Decisions
Strasser v. State of Oregon (2021)
or · cites it 19×
“In the order of dismissal, the court explained that (1) the motion for late appeal failed to make a show- ing of a colorable claim of error in the proceeding from which the appeal was taken, as required by ORS 138.071 (5)(a)(B); (2) the motion was not filed within the 90-day…”
State v. Mullins (2012)
or · cites it 55×
“Most notably, other parts of ORS 138.071 that establish various time periods for appeal are based on the date of entry of the judgment or order at issue — and thereby on a party’s constructive notice of that date — and not on a defendant’s receipt of actual notice of entry.”
Miller v. Baldwin (2001)
orctapp · cites it 16×
“The clerk, on the date the judgment is entered, shall mail a notice of the entry of the judgment in the register and shall mail a copy of the entry in the judgment docket. If the judgment was not docketed in the judgment docket, the clerk shall give notice of that fact.”
State v. Smith (2024)
orctapp · cites it 15×
“Given the legislature’s omission of a timeline for resolving a motion under ORS 138.071, it is not implausible to think that the legislature intended for the court to have jurisdiction to grant a timely-filed motion that makes the showing required under ORS 138.”
State v. Mullins (2011)
orctapp · cites it 15×
“In its response, the state argues that this court lacks jurisdiction to consider defendant’s sole assignment of error because he failed to timely file a notice of appeal from the supplemental judgment as required by ORS 138.071. In reply, defendant asserts that the notice of…”
In Re Complaint as to the Conduct of Obert (2012)
or · cites it 8×
“The accused later explained that he was intending to argue to the Court of Appeals that ORS 138.071 could be read to allow for the filing of a late notice of appeal.”
State v. Panichello (1984)
orctapp · cites it 11×
“The time for filing a criminal appeal is governed by ORS 138.071 which provides: “(1) Except as provided in subsections (2) and (3) of this section, the notice of appeal shall be served and filed at any *522 time after verdict, but not later than 30 days after the judgment or…”
Felkel v. Thompson (1998)
orctapp · cites it 15×
“Only ORS 138.071 pertains to the time for filing an appeal.”
State v. Ainsworth (2009)
or · cites it 4×
“200(5) (describing procedure and requirements for obtaining delayed appeal outside the normal time limits for appeals in juvenile cases).”
State v. Donovan (1989)
or · cites it 4×
“A judgment suspending imposition or execution of sentence or placing a defendant on probation shall be deemed a judgment on a conviction and shall not be subject to appeal after expiration of the time specified in ORS 138.071 except as provided in ORS 138.”
State v. Green (1984)
orctapp · cites it 4×
“) It thus does not distinguish between the filing and the entry of the order, but instead uses terms that have no other procedural referents.”
Stevens v. Bispham (1993)
or · cites it 2×
“" ORS 138.071. For all practical purposes, the other way to set aside a conviction is through a petition for post-conviction relief, which, where no direct appeal is taken, [9] must be filed within 120 days of the date the judgment of conviction is entered.”
— Or. Rev. Stat. § 138.071(1) — 31 cases
State v. Panichello (1984)
orctapp
“The time for filing a criminal appeal is governed by ORS 138.071 which provides: “(1) Except as provided in subsections (2) and (3) of this section, the notice of appeal shall be served and filed at any *522 time after verdict, but not later than 30 days after the judgment or…”
State v. Green (1984)
orctapp
“) It thus does not distinguish between the filing and the entry of the order, but instead uses terms that have no other procedural referents.”
In Re Complaint as to the Conduct of Obert (2012)
or
“The accused later explained that he was intending to argue to the Court of Appeals that ORS 138.071 could be read to allow for the filing of a late notice of appeal.”
— Or. Rev. Stat. § 138.071(2) — 12 cases
In Re Complaint as to the Conduct of Obert (2012)
or
“The accused later explained that he was intending to argue to the Court of Appeals that ORS 138.071 could be read to allow for the filing of a late notice of appeal.”
State v. Panichello (1984)
orctapp
“The time for filing a criminal appeal is governed by ORS 138.071 which provides: “(1) Except as provided in subsections (2) and (3) of this section, the notice of appeal shall be served and filed at any *522 time after verdict, but not later than 30 days after the judgment or…”
— Or. Rev. Stat. § 138.071(2)(a) — 6 cases
State v. Green (1984)
orctapp
“) It thus does not distinguish between the filing and the entry of the order, but instead uses terms that have no other procedural referents.”
State v. Panichello (1984)
orctapp
“The time for filing a criminal appeal is governed by ORS 138.071 which provides: “(1) Except as provided in subsections (2) and (3) of this section, the notice of appeal shall be served and filed at any *522 time after verdict, but not later than 30 days after the judgment or…”
State v. Mullins (2012)
or
“Most notably, other parts of ORS 138.071 that establish various time periods for appeal are based on the date of entry of the judgment or order at issue — and thereby on a party’s constructive notice of that date — and not on a defendant’s receipt of actual notice of entry.”
— Or. Rev. Stat. § 138.071(2)(b) — 2 cases
— Or. Rev. Stat. § 138.071(3) — 3 cases
State v. Mullins (2012)
or
“Most notably, other parts of ORS 138.071 that establish various time periods for appeal are based on the date of entry of the judgment or order at issue — and thereby on a party’s constructive notice of that date — and not on a defendant’s receipt of actual notice of entry.”
— Or. Rev. Stat. § 138.071(4) — 18 cases
State v. Mullins (2012)
or
“Most notably, other parts of ORS 138.071 that establish various time periods for appeal are based on the date of entry of the judgment or order at issue — and thereby on a party’s constructive notice of that date — and not on a defendant’s receipt of actual notice of entry.”
State v. Mullins (2011)
orctapp
“In its response, the state argues that this court lacks jurisdiction to consider defendant’s sole assignment of error because he failed to timely file a notice of appeal from the supplemental judgment as required by ORS 138.071. In reply, defendant asserts that the notice of…”
Felkel v. Thompson (1998)
orctapp
“Only ORS 138.071 pertains to the time for filing an appeal.”
Miller v. Baldwin (2001)
orctapp
“The clerk, on the date the judgment is entered, shall mail a notice of the entry of the judgment in the register and shall mail a copy of the entry in the judgment docket. If the judgment was not docketed in the judgment docket, the clerk shall give notice of that fact.”
— Or. Rev. Stat. § 138.071(4)(a) — 2 cases
Miller v. Baldwin (2001)
orctapp
“The clerk, on the date the judgment is entered, shall mail a notice of the entry of the judgment in the register and shall mail a copy of the entry in the judgment docket. If the judgment was not docketed in the judgment docket, the clerk shall give notice of that fact.”
— Or. Rev. Stat. § 138.071(4)(a)(B) — 3 cases
— Or. Rev. Stat. § 138.071(4)(c) — 1 case
— Or. Rev. Stat. § 138.071(4)(e) — 1 case
Felkel v. Thompson (1998)
orctapp
“Only ORS 138.071 pertains to the time for filing an appeal.”
— Or. Rev. Stat. § 138.071(5) — 14 cases
Strasser v. State of Oregon (2021)
or
“In the order of dismissal, the court explained that (1) the motion for late appeal failed to make a show- ing of a colorable claim of error in the proceeding from which the appeal was taken, as required by ORS 138.071 (5)(a)(B); (2) the motion was not filed within the 90-day…”
State v. Smith (2024)
orctapp
“Given the legislature’s omission of a timeline for resolving a motion under ORS 138.071, it is not implausible to think that the legislature intended for the court to have jurisdiction to grant a timely-filed motion that makes the showing required under ORS 138.”
State v. Ainsworth (2009)
or
“200(5) (describing procedure and requirements for obtaining delayed appeal outside the normal time limits for appeals in juvenile cases).”
In Re Complaint as to the Conduct of Obert (2012)
or
“The accused later explained that he was intending to argue to the Court of Appeals that ORS 138.071 could be read to allow for the filing of a late notice of appeal.”
— Or. Rev. Stat. § 138.071(5)(a) — 8 cases
Strasser v. State of Oregon (2021)
or
“In the order of dismissal, the court explained that (1) the motion for late appeal failed to make a show- ing of a colorable claim of error in the proceeding from which the appeal was taken, as required by ORS 138.071 (5)(a)(B); (2) the motion was not filed within the 90-day…”
State v. Smith (2024)
orctapp
“Given the legislature’s omission of a timeline for resolving a motion under ORS 138.071, it is not implausible to think that the legislature intended for the court to have jurisdiction to grant a timely-filed motion that makes the showing required under ORS 138.”
In Re Complaint as to the Conduct of Obert (2012)
or
“The accused later explained that he was intending to argue to the Court of Appeals that ORS 138.071 could be read to allow for the filing of a late notice of appeal.”
— Or. Rev. Stat. § 138.071(5)(a)(A) — 1 case
Strasser v. State of Oregon (2021)
or
“In the order of dismissal, the court explained that (1) the motion for late appeal failed to make a show- ing of a colorable claim of error in the proceeding from which the appeal was taken, as required by ORS 138.071 (5)(a)(B); (2) the motion was not filed within the 90-day…”
— Or. Rev. Stat. § 138.071(5)(c) — 5 cases
Strasser v. State of Oregon (2021)
or
“In the order of dismissal, the court explained that (1) the motion for late appeal failed to make a show- ing of a colorable claim of error in the proceeding from which the appeal was taken, as required by ORS 138.071 (5)(a)(B); (2) the motion was not filed within the 90-day…”
State v. Smith (2024)
orctapp
“Given the legislature’s omission of a timeline for resolving a motion under ORS 138.071, it is not implausible to think that the legislature intended for the court to have jurisdiction to grant a timely-filed motion that makes the showing required under ORS 138.”
State v. Ainsworth (2009)
or
“200(5) (describing procedure and requirements for obtaining delayed appeal outside the normal time limits for appeals in juvenile cases).”
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.