138.105 Appeal
by defendant. (1)
On appeal by a defendant, the appellate court has authority to review the
judgment or order being appealed, subject to the provisions of this section.
(2) The appellate
court has authority to review only questions of law appearing on the record.
(3) Except as
otherwise provided in this section, the appellate court has authority to review
any intermediate decision of the trial court.
(4) On appeal
from a judgment of conviction and sentence, the appellate court has authority
to review:
(a) The denial of
a motion for new trial based on juror misconduct or newly discovered evidence;
and
(b) The denial of
a motion in arrest of judgment.
(5) The appellate
court has no authority to review the validity of the defendant’s plea of guilty
or no contest, or a conviction based on the defendant’s plea of guilty or no
contest, except that:
(a) The appellate
court has authority to review the trial court’s adverse determination of a
pretrial motion reserved in a conditional plea of guilty or no contest under
ORS 135.335.
(b) The appellate
court has authority to review whether the trial court erred by not merging
determinations of guilt of two or more offenses, unless the entry of separate
convictions results from an agreement between the state and the defendant.
(6) On appeal
from a judgment ordering payment of restitution but not specifying the amount
of restitution, the appellate court has no authority to review the decision to
award restitution.
(7) Except as
otherwise provided in subsections (8) and (9) of this section, the appellate
court has authority to review any sentence to determine whether the trial court
failed to comply with requirements of law in imposing or failing to impose a
sentence.
(8) Except as
otherwise provided in subsection (9) of this section, for a sentence imposed on
conviction of a felony committed on or after November 1, 1989:
(a) The appellate
court has no authority to review:
(A) A sentence
that is within the presumptive sentence prescribed by the rules of the Oregon
Criminal Justice Commission.
(B) A sentence of
probation when the rules of the Oregon Criminal Justice Commission prescribe a
presumptive sentence of imprisonment but allow a sentence of probation without
departure.
(C) A sentence of
imprisonment when the rules of the Oregon Criminal Justice Commission prescribe
a presumptive sentence of imprisonment but allow a sentence of probation
without departure.
(b) If the trial
court imposed a sentence that departs from the presumptive sentence prescribed
by the rules of the Oregon Criminal Justice Commission, the appellate court’s
authority to review is limited to whether the trial court’s findings of fact
and reasons justifying a departure from the sentence prescribed by the rules of
the Oregon Criminal Justice Commission:
(A) Are supported
by the evidence in the record; and
(B) Constitute
substantial and compelling reasons for departure.
(c)
Notwithstanding paragraph (a) of this subsection, the appellate court has
authority to review whether the sentencing court erred:
(A) In ranking
the crime seriousness classification of the current crime or in determining the
appropriate classification of a prior conviction or juvenile adjudication for
criminal history purposes.
(B) In imposing
or failing to impose a minimum sentence prescribed by ORS 137.700 or 137.707.
(9) The appellate
court has no authority to review any part of a sentence resulting from a
stipulated sentencing agreement between the state and the defendant.
(10)(a) On appeal
from a corrected or amended judgment that is entered before expiration of the
applicable period under ORS 138.071 (1) or (2) during which the original
judgment can be appealed, the appellate court has authority to review the
judgment, including the corrections or amendments, as provided in this section.
(b) On appeal
from a corrected or amended judgment that is entered after expiration of the
applicable period under ORS 138.071 (1) or (2) during which the original
judgment was or could have been appealed, the appellate court has authority to
review, as provided in this section, only the corrected or amended part of the
judgment, any part of the judgment affected by the correction or amendment, or
the trial court’s decision under ORS 137.172 not to correct or amend the
judgment.
(c) As used in
this subsection, “judgment” means any appealable judgment or order.
(11)(a) On a
defendant’s cross-appeal under ORS 138.035 (5), the appellate court may, in its
discretion, limit review to any decision by the trial court that is
inextricably linked, either factually or legally, to the state’s appeal.
(b) The failure
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. [2017 c.529 §13]
138.110 [Amended by 1963 c.324 §1; 1971
c.565 §24; repealed by 2017 c.529 §26]
Notes of Decisions
Cited in
227
cases (
217 in the last 5 years), 2018–2026 · leading case:
State v. Colgrove, 521 P.3d 456 (Or. 2022).
State v. Colgrove, 521 P.3d 456 (Or. 2022).
· cites it 50× “ORS 138.105 and related statutes Further examination of the statutory context con- firms that conclusion.”
State v. Merrill, 492 P.3d 722 (Or. Ct. App. 2021).
· cites it 24× “But ORS 138.105 states that “[o]n appeal by a defendant,” we “ha[ve] no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest” except in circumstances not present here.”
State v. Rusen, 509 P.3d 628 (Or. 2022).
· cites it 24× “Framework The authority of the Court of Appeals, and of this court, to review defendant’s sentence is governed by ORS 138.105. See ORS 138.105(1) (“On appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the…”
State v. Davis-McCoy, 454 P.3d 48 (Or. Ct. App. 2019).
· cites it 12× “222(2)(d) (2015), 1 ORS 138.105 applies to appeals from judgments entered by the trial court on or after January 1, 2018.”
State v. Neill, 526 P.3d 1221 (Or. Ct. App. 2023).
· cites it 16× “Held: Because defendant stipulated to the probation-revocation sen- tence as part of his plea agreement to the original charges, ORS 138.105(9) bars appellate review of his challenge.”
State v. Redick, 491 P.3d 87 (Or. Ct. App. 2021).
· cites it 7× “Merrill, 311 Or App 487 , 492 P3d 722 (2021), we reject the bulk of defendant’s arguments and conclude that ORS 138.105(5) bars appellate review. Defendant also argues that, if ORS 138.”
State v. Gardner-Rolph, 345 Or. App. 681 (Or. Ct. App. 2025).
· cites it 41× “105 provides, in relevant part: “(7) Except as otherwise provided in subsections (8) and (9) of this section, the appellate court has authority to review any sentence to determine whether the trial court failed to comply with requirements of law in imposing or failing to impose…”
State v. Jones, 492 P.3d 116 (Or. Ct. App. 2021).
· cites it 12× “Held: Pursuant to ORS 138.105(5), the Court of Appeals had no authority to review the validity of defendant’s conviction.”
State v. Rusen, 479 P.3d 318 (Or. Ct. App. 2020).
· cites it 8× “The state responds that ORS 138.105(9) precludes appellate review of defendant’s sentence because it was the product of a stipulated sentencing agreement.”
State v. Fernandez, 555 P.3d 350 (Or. Ct. App. 2024).
· cites it 17× “222(2)(a) (1989), but contained an exception for claims that the “sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classifica- tion of a prior conviction or juvenile adjudication for crimi- nal history…”
State v. Thomas, 492 P.3d 87 (Or. Ct. App. 2021).
· cites it 10× “In response, the state first argues that defendant’s assignment of error is unreview- able under ORS 138.105(9), which bars appellate review of “any part of a sen- tence resulting from a stipulated sentencing agreement between the state and the defendant.”
State v. Logston, 374 Or. 101 (Or. 2025).
· cites it 3× “On review, this court first addressed a “threshold issue”: whether ORS 138.105(9) precluded appellate review of the consecutive incarceration terms that the trial court had imposed.”
— Or. Rev. Stat. § 138.105(1) — 9 cases
State v. Merrill, 492 P.3d 722 (Or. Ct. App. 2021).
“But ORS 138.105 states that “[o]n appeal by a defendant,” we “ha[ve] no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest” except in circumstances not present here.”
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“ORS 138.105 and related statutes Further examination of the statutory context con- firms that conclusion.”
State v. Davis-McCoy, 454 P.3d 48 (Or. Ct. App. 2019).
“222(2)(d) (2015), 1 ORS 138.105 applies to appeals from judgments entered by the trial court on or after January 1, 2018.”
State v. Rusen, 509 P.3d 628 (Or. 2022).
“Framework The authority of the Court of Appeals, and of this court, to review defendant’s sentence is governed by ORS 138.105. See ORS 138.105(1) (“On appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the…”
— Or. Rev. Stat. § 138.105(10)(b) — 1 case
— Or. Rev. Stat. § 138.105(11)(a) — 1 case
— Or. Rev. Stat. § 138.105(11)(b) — 1 case
— Or. Rev. Stat. § 138.105(2) — 3 cases
— Or. Rev. Stat. § 138.105(3) — 3 cases
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“ORS 138.105 and related statutes Further examination of the statutory context con- firms that conclusion.”
State v. Merrill, 492 P.3d 722 (Or. Ct. App. 2021).
“But ORS 138.105 states that “[o]n appeal by a defendant,” we “ha[ve] no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest” except in circumstances not present here.”
— Or. Rev. Stat. § 138.105(4)(a) — 8 cases
— Or. Rev. Stat. § 138.105(5) — 67 cases
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“ORS 138.105 and related statutes Further examination of the statutory context con- firms that conclusion.”
State v. Merrill, 492 P.3d 722 (Or. Ct. App. 2021).
“But ORS 138.105 states that “[o]n appeal by a defendant,” we “ha[ve] no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest” except in circumstances not present here.”
State v. Redick, 491 P.3d 87 (Or. Ct. App. 2021).
“Merrill, 311 Or App 487 , 492 P3d 722 (2021), we reject the bulk of defendant’s arguments and conclude that ORS 138.105(5) bars appellate review. Defendant also argues that, if ORS 138.”
State v. Jones, 492 P.3d 116 (Or. Ct. App. 2021).
“Held: Pursuant to ORS 138.105(5), the Court of Appeals had no authority to review the validity of defendant’s conviction.”
— Or. Rev. Stat. § 138.105(5)(a) — 7 cases
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“ORS 138.105 and related statutes Further examination of the statutory context con- firms that conclusion.”
State v. Merrill, 492 P.3d 722 (Or. Ct. App. 2021).
“But ORS 138.105 states that “[o]n appeal by a defendant,” we “ha[ve] no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest” except in circumstances not present here.”
State v. Jones, 492 P.3d 116 (Or. Ct. App. 2021).
“Held: Pursuant to ORS 138.105(5), the Court of Appeals had no authority to review the validity of defendant’s conviction.”
State v. Redick, 491 P.3d 87 (Or. Ct. App. 2021).
“Merrill, 311 Or App 487 , 492 P3d 722 (2021), we reject the bulk of defendant’s arguments and conclude that ORS 138.105(5) bars appellate review. Defendant also argues that, if ORS 138.”
— Or. Rev. Stat. § 138.105(5)(b) — 4 cases
State v. Merrill, 492 P.3d 722 (Or. Ct. App. 2021).
“But ORS 138.105 states that “[o]n appeal by a defendant,” we “ha[ve] no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest” except in circumstances not present here.”
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“ORS 138.105 and related statutes Further examination of the statutory context con- firms that conclusion.”
— Or. Rev. Stat. § 138.105(7) — 16 cases
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“ORS 138.105 and related statutes Further examination of the statutory context con- firms that conclusion.”
State v. Merrill, 492 P.3d 722 (Or. Ct. App. 2021).
“But ORS 138.105 states that “[o]n appeal by a defendant,” we “ha[ve] no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest” except in circumstances not present here.”
State v. Gardner-Rolph, 345 Or. App. 681 (Or. Ct. App. 2025).
“105 provides, in relevant part: “(7) Except as otherwise provided in subsections (8) and (9) of this section, the appellate court has authority to review any sentence to determine whether the trial court failed to comply with requirements of law in imposing or failing to impose…”
— Or. Rev. Stat. § 138.105(8) — 7 cases
State v. Colgrove, 521 P.3d 456 (Or. 2022).
“ORS 138.105 and related statutes Further examination of the statutory context con- firms that conclusion.”
State v. Gardner-Rolph, 345 Or. App. 681 (Or. Ct. App. 2025).
“105 provides, in relevant part: “(7) Except as otherwise provided in subsections (8) and (9) of this section, the appellate court has authority to review any sentence to determine whether the trial court failed to comply with requirements of law in imposing or failing to impose…”
State v. Fernandez, 555 P.3d 350 (Or. Ct. App. 2024).
“222(2)(a) (1989), but contained an exception for claims that the “sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classifica- tion of a prior conviction or juvenile adjudication for crimi- nal history…”
— Or. Rev. Stat. § 138.105(8)(a) — 5 cases
State v. Fernandez, 555 P.3d 350 (Or. Ct. App. 2024).
“222(2)(a) (1989), but contained an exception for claims that the “sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classifica- tion of a prior conviction or juvenile adjudication for crimi- nal history…”
State v. Gardner-Rolph, 345 Or. App. 681 (Or. Ct. App. 2025).
“105 provides, in relevant part: “(7) Except as otherwise provided in subsections (8) and (9) of this section, the appellate court has authority to review any sentence to determine whether the trial court failed to comply with requirements of law in imposing or failing to impose…”
— Or. Rev. Stat. § 138.105(8)(a)(A) — 13 cases
State v. Gardner-Rolph, 345 Or. App. 681 (Or. Ct. App. 2025).
“105 provides, in relevant part: “(7) Except as otherwise provided in subsections (8) and (9) of this section, the appellate court has authority to review any sentence to determine whether the trial court failed to comply with requirements of law in imposing or failing to impose…”
State v. Fernandez, 555 P.3d 350 (Or. Ct. App. 2024).
“222(2)(a) (1989), but contained an exception for claims that the “sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classifica- tion of a prior conviction or juvenile adjudication for crimi- nal history…”
— Or. Rev. Stat. § 138.105(8)(b) — 6 cases
— Or. Rev. Stat. § 138.105(8)(c) — 1 case
— Or. Rev. Stat. § 138.105(8)(c)(A) — 7 cases
State v. Fernandez, 555 P.3d 350 (Or. Ct. App. 2024).
“222(2)(a) (1989), but contained an exception for claims that the “sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classifica- tion of a prior conviction or juvenile adjudication for crimi- nal history…”
State v. Gardner-Rolph, 345 Or. App. 681 (Or. Ct. App. 2025).
“105 provides, in relevant part: “(7) Except as otherwise provided in subsections (8) and (9) of this section, the appellate court has authority to review any sentence to determine whether the trial court failed to comply with requirements of law in imposing or failing to impose…”
— Or. Rev. Stat. § 138.105(9) — 52 cases
State v. Rusen, 509 P.3d 628 (Or. 2022).
“Framework The authority of the Court of Appeals, and of this court, to review defendant’s sentence is governed by ORS 138.105. See ORS 138.105(1) (“On appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the…”
State v. Davis-McCoy, 454 P.3d 48 (Or. Ct. App. 2019).
“222(2)(d) (2015), 1 ORS 138.105 applies to appeals from judgments entered by the trial court on or after January 1, 2018.”
State v. Neill, 526 P.3d 1221 (Or. Ct. App. 2023).
“Held: Because defendant stipulated to the probation-revocation sen- tence as part of his plea agreement to the original charges, ORS 138.105(9) bars appellate review of his challenge.”
State v. Rusen, 479 P.3d 318 (Or. Ct. App. 2020).
“The state responds that ORS 138.105(9) precludes appellate review of defendant’s sentence because it was the product of a stipulated sentencing agreement.”
State v. Thomas, 492 P.3d 87 (Or. Ct. App. 2021).
“In response, the state first argues that defendant’s assignment of error is unreview- able under ORS 138.105(9), which bars appellate review of “any part of a sen- tence resulting from a stipulated sentencing agreement between the state and the defendant.”
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