138.560
Procedure upon filing petition for relief; filing fee; venue and transfer of
proceedings. (1) A
proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680 shall
be commenced by filing a petition with the clerk of the circuit court for the
county in which the petitioner is imprisoned or, if the petitioner is not
imprisoned, with the clerk of the circuit court for the county in which the
petitioner’s conviction and sentence was rendered. Except as otherwise provided
in ORS 138.590, the petitioner must pay the filing fee established under ORS
21.135 at the time of filing a petition under this section. If the petitioner
prevails, the petitioner shall recover the fee pursuant to the Oregon Rules of
Civil Procedure. The clerk of the court in which the petition is filed shall
enter and file the petition and bring it promptly to the attention of such
court. A copy of the petition need not be served by petitioner on the
defendant, but, in lieu thereof, the clerk of the court in which the petition
is filed shall immediately forward a copy of the petition to the Attorney
General or other attorney for the defendant named in ORS 138.570.
(2) For the
purposes of ORS 138.510 to 138.680, a person released on parole, post-prison
supervision or conditional pardon shall be deemed to be imprisoned in the
institution from which the person was released.
(3) Except when
petitioner’s conviction was for a misdemeanor, the release of the petitioner
from imprisonment during the pendency of proceedings instituted pursuant to ORS
138.510 to 138.680 shall not cause the proceedings to become moot. Such release
of petitioner shall not change the venue of the proceedings out of the circuit
court in which the proceedings were commenced and shall not affect the power of
such court to transfer the proceedings as provided in subsection (4) of this
section.
(4) Whenever the
petitioner is imprisoned in a Department of Corrections institution and the
circuit court for the county in which the petitioner is imprisoned finds that
the hearing upon the petition can be more expeditiously conducted in the county
in which the petitioner was convicted and sentenced, the circuit court upon its
own motion or the motion of a party may order the petitioner’s case to be
transferred to the circuit court for the county in which petitioner’s
conviction and sentence were rendered. The court’s order is not reviewable by
any court of this state.
(5) When a
petitioner who is imprisoned in a Department of Corrections institution is
transferred to another Department of Corrections institution, the circuit court
in which a post-conviction relief proceeding is pending may deny a motion for a
change of venue to the county where the petitioner is transferred. The court’s
order is not reviewable by any court of this state. [1959 c.636 §6; 1983 c.505 §14;
1987 c.320 §44; 1991 c.249 §17; 1995 c.273 §20; 1995 c.657 §4; 2003 c.261 §1;
2003 c.737 §§65,66; 2005 c.702 §§77,78,79; 2011 c.595 §57; 2015 c.119 §1; 2019
c.399 §2]
Notes of Decisions
Cited in
14
cases (
1 in the last 5 years), 1961–2023 · leading case:
Baldeagle v. Lampert, 59 P.3d 545 (Or. Ct. App. 2002).
Baldeagle v. Lampert, 59 P.3d 545 (Or. Ct. App. 2002).
· cites it 5× “Although ORS 138.560 does not make the point explicitly, we conclude that a clerk cannot file a post-conviction petition until the petitioner has paid the $25 filing fee or has received court approval under ORS 138.”
Ware v. Hall, 154 P.3d 118 (Or. 2007).
· cites it 3× “ORS 138.560 sets out the procedures for filing a petition for post-conviction relief.”
Bogle v. State, 423 P.3d 715 (Or. 2018).
“ORS 138.560(1). If a petitioner wants to be represented by counsel but is unable to retain counsel, the petitioner must file a pro se petition, together with a request for counsel.”
Phelps v. State, 901 P.2d 965 (Or. Ct. App. 1995).
· cites it 15× “In January 1994, the state moved to dismiss the petition on the ground that, pursuant to ORS 138.560, the Washington County Circuit Court lacked jurisdiction.”
Bartz v. State of Oregon, 839 P.2d 217 (Or. 1992).
“It provides detailed procedures for the filing and processing of petitions, ORS 138.560 to 138.660, including provisions for proceeding as an indigent person, ORS 138.”
Baker v. State of Oregon, 529 P.3d 1015 (Or. Ct. App. 2023).
“As a result, it is not clear to us that the PCHA, which also con- templates that relief may be available to out-of-custody per- sons, ORS 138.560(1), necessarily provides lesser relief than that offered by coram nobis to someone in petitioner’s cir- cumstances.”
Morasch v. State, 493 P.2d 1364 (Or. 1972).
· cites it 5× “The court relied on ORS 138.560 (3): “Except when petitioner’s conviction was for a misdemeanor, the release of the petitioner from imprisonment during the pendency of the proceedings instituted by him pursuant to ORS 138.”
Application of Shrewsbury, 627 P.2d 910 (Or. Ct. App. 1981).
“"(3) Except as provided in ORS 138.560, persons eligible to obtain post-conviction relief pursuant to ORS 138.”
Strong v. Gladden, 358 P.2d 520 (Or. 1961).
“ORS 138.560(4). On August 5, 1959, the Multnomah county circuit court entered an order which in substance stated that the plaintiff having requested an order “authorizing and directing * * * Warden of the Oregon State Penitentiary” to deliver him to the sheriff of Multnomah…”
Alcorn v. Gladden, 390 P.2d 625 (Or. 1964).
“On July 28, 1961 the cause was transferred for trial to the circuit court for Klamath county pursuant to ORS 138.560 (4). On June 28, 1962 the cause was tried in Klamath county before the Honorable Charles H.”
Bryant v. State, 378 P.2d 951 (Or. 1963).
“Accordingly, the proceedings are continued against the State of Oregon under the provisions of ORS 138.560 (2) and 138.570. The petitioner was sentenced in 1960, in Lake County, for the crime of burglary not in a dwelling, and now seeks to have his sentence, and, he suggests,…”
Bohanan v. Amsberry, 444 P.3d 515 (Or. Ct. App. 2019).
· cites it 17× “Third, petitioner contends that the post-conviction court's "monetary judgment was issued without notice nor opportunity for hearing and without making any findings related to petitioner's ability to pay the filing fee," which petitioner contends "has been held to be improper in…”
— Or. Rev. Stat. § 138.560(1) — 6 cases
Bogle v. State, 423 P.3d 715 (Or. 2018).
“ORS 138.560(1). If a petitioner wants to be represented by counsel but is unable to retain counsel, the petitioner must file a pro se petition, together with a request for counsel.”
Baker v. State of Oregon, 529 P.3d 1015 (Or. Ct. App. 2023).
“As a result, it is not clear to us that the PCHA, which also con- templates that relief may be available to out-of-custody per- sons, ORS 138.560(1), necessarily provides lesser relief than that offered by coram nobis to someone in petitioner’s cir- cumstances.”
Baldeagle v. Lampert, 59 P.3d 545 (Or. Ct. App. 2002).
“Although ORS 138.560 does not make the point explicitly, we conclude that a clerk cannot file a post-conviction petition until the petitioner has paid the $25 filing fee or has received court approval under ORS 138.”
Phelps v. State, 901 P.2d 965 (Or. Ct. App. 1995).
“In January 1994, the state moved to dismiss the petition on the ground that, pursuant to ORS 138.560, the Washington County Circuit Court lacked jurisdiction.”
Bohanan v. Amsberry, 444 P.3d 515 (Or. Ct. App. 2019).
“Third, petitioner contends that the post-conviction court's "monetary judgment was issued without notice nor opportunity for hearing and without making any findings related to petitioner's ability to pay the filing fee," which petitioner contends "has been held to be improper in…”
— Or. Rev. Stat. § 138.560(3) — 2 cases
Phelps v. State, 901 P.2d 965 (Or. Ct. App. 1995).
“In January 1994, the state moved to dismiss the petition on the ground that, pursuant to ORS 138.560, the Washington County Circuit Court lacked jurisdiction.”
Morasch v. State, 493 P.2d 1364 (Or. 1972).
“The court relied on ORS 138.560 (3): “Except when petitioner’s conviction was for a misdemeanor, the release of the petitioner from imprisonment during the pendency of the proceedings instituted by him pursuant to ORS 138.”
— Or. Rev. Stat. § 138.560(4) — 3 cases
Strong v. Gladden, 358 P.2d 520 (Or. 1961).
“ORS 138.560(4). On August 5, 1959, the Multnomah county circuit court entered an order which in substance stated that the plaintiff having requested an order “authorizing and directing * * * Warden of the Oregon State Penitentiary” to deliver him to the sheriff of Multnomah…”
Phelps v. State, 901 P.2d 965 (Or. Ct. App. 1995).
“In January 1994, the state moved to dismiss the petition on the ground that, pursuant to ORS 138.560, the Washington County Circuit Court lacked jurisdiction.”
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