138.650
Appeal. (1) Either
the petitioner or the defendant may appeal to the Court of Appeals within 30
days after the entry of a judgment on a petition pursuant to ORS 138.510 to
138.680. The manner of taking the appeal and the scope of review by the Court
of Appeals and the Supreme Court shall be the same as that provided by law for
appeals in criminal actions, except that:
(a) The trial
court may provide that the transcript contain only such evidence as may be
material to the decision of the appeal; and
(b) With respect
to ORS 138.081 (1), if petitioner appeals, petitioner shall cause the notice of
appeal to be served on the attorney for defendant, and, if defendant appeals,
defendant shall cause the notice of appeal to be served on the attorney for petitioner
or, if petitioner has no attorney of record, on petitioner.
(2)(a) Upon
motion of the petitioner, the Court of Appeals shall grant the petitioner leave
to file a notice of appeal after the time limit described in subsection (1) of
this section if:
(A) The
petitioner, by clear and convincing evidence, shows that the failure to file a
timely notice of appeal is not attributable to the petitioner personally; and
(B) The
petitioner shows a colorable claim of error in the proceeding from which the
appeal is taken.
(b) The request
for leave to file a notice of appeal after the time limit described in
subsection (1) of this section shall be filed no later than 90 days after entry
of the judgment from which the petitioner seeks to appeal and shall be
accompanied by the notice of appeal sought to be filed. A request for leave
under this subsection may be filed by mail. The date of filing shall be the
date of mailing if the request is mailed as provided in ORS 19.260.
(c) The Court of
Appeals may not grant relief under this subsection unless the defendant has
received notice of and an opportunity to respond to the petitioner’s request
for relief.
(3) A party
cross-appealing shall serve and file the notice of cross-appeal:
(a) Within 10
days of the expiration of the time allowed in subsection (1) of this section;
or
(b) If the
petitioner’s notice of appeal is filed pursuant to subsection (2) of this
section, within 10 days of the expiration of the time allowed in subsection (2)
of this section.
(4) An appeal
under this section taken by the defendant stays the effect of the judgment. If
the petitioner is incarcerated, the trial court may stay the petitioner’s
sentence pending the defendant’s appeal and order conditional release or
security release, in accordance with ORS 135.230 to 135.290, only if:
(a) The
post-conviction court’s judgment vacates the judgment of conviction or reduces
the sentence or sentences imposed upon conviction;
(b) The
petitioner has completed any other sentence of incarceration to which the
petitioner is subject; and
(c) The
petitioner otherwise would be entitled to immediate release from incarceration
under the court’s judgment.
(5) In an appeal
under this section or to the United States Supreme Court, the Attorney General
shall represent the defendant. [1959 c.636 §18; 1963 c.557 §1; 1969 c.198 §72;
1971 c.565 §26; 1987 c.852 §3; 2003 c.576 §246; 2007 c.193 §1; 2019 c.399 §4]
Notes of Decisions
Cited in
81
cases (
4 in the last 5 years), 1962–2022 · leading case:
Miller v. Baldwin, 32 P.3d 234 (Or. Ct. App. 2001).
Miller v. Baldwin, 32 P.3d 234 (Or. Ct. App. 2001).
· cites it 10× “2d 657 (1998), this court determined that ORS 138.650 imposes, without exception, a 30-day time limit for filing a notice of appeal from a judgment denying post-conviction relief.”
Felkel v. Thompson, 970 P.2d 657 (Or. Ct. App. 1998).
· cites it 10× “071(4) and ORS 138.650. ORS 138.071(4) provides that if a criminal defendant fails to file a notice of appeal within 30 days after the entry of the judgment: “(4)(a) Upon motion of a defendant the Court of Appeals shall grant the defendant leave to file a notice of appeal * * *…”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
· cites it 2× “ORS 138.650. That petition, which challenged petitioner's dangerous offender sentence, alleged, variously, that the sentence was unconstitutional because it was based on facts not pleaded in the indictment and not found by the jury beyond a reasonable doubt, and that he received…”
Horn v. Hill, 41 P.3d 1127 (Or. Ct. App. 2002).
· cites it 2× “We summarize the following facts from the post-conviction record and the post-conviction trial court's findings. Petitioner and the child's mother began dating in March 1995, *1129 when the child was two and one-half years old.”
State v. Ainsworth, 213 P.3d 1225 (Or. 2009).
· cites it 2× “200(5) (describing procedure and requirements for obtaining delayed appeal outside the normal time limits for appeals in juvenile cases). Indeed, ORS 138.071(5)(c) now includes a provision that, in a criminal case only, allows for a delayed appeal up to 90 days after the…”
Moen v. Peterson, 824 P.2d 404 (Or. 1991).
· cites it 2× “The state contends that the Court of Appeals exceeded its scope of review under ORS 138.650, 6 by “finding *511 as fact” that petitioner was unaware of the possibility of a 10-year minimum sentence, when the post-conviction court had found that petitioner was aware of it.”
Adams v. Nooth, 245 P.3d 173 (Or. Ct. App. 2010).
· cites it 4× “[1] ORS 138.650(1) provides, in part, that either party to a post-conviction relief proceeding may appeal to this court and that the manner of taking the appeal and scope of review shall be the same as that provided by law for appeals in criminal actions except that "[t]he trial…”
Chew v. State, 855 P.2d 1120 (Or. Ct. App. 1993).
· cites it 2× “The crux of petitioner's argument is that the attorney failed to advise him that, if he drove while his license was suspended as a result of the DUII conviction, any conviction for DWS would be a felony instead of an infraction.”
Cunningham v. Premo, 373 P.3d 1167 (Marion Cty. Cir. Ct., O.R. 2016).
· cites it 2× “205, which pertains to civil appeals generally, defendant correctly notes that specific authority for an appeal of a judgment on a petition for post-conviction relief is provided by ORS 138.650. See ORS 138.650(1) (providing that “[ejither the petitioner or the defendant may…”
Hartzog v. Keeney, 742 P.2d 600 (Or. 1987).
· cites it 2× “Instead, the Court of Appeals inappropriately undertook factfinding contrary to ORS 138.650 and found that petitioner was aware of the recommendation in the presentence report.”
McDonnell v. Premo, 483 P.3d 640 (Or. Ct. App. 2021).
“The petition also alleged an “outrageous and prejudicial delay” in the proceedings. The post-conviction court issued a lengthy letter opinion addressing petitioner’s claims and denying relief.”
Young v. Hill, 218 P.3d 125 (Or. 2009).
““(3) Notwithstanding ORS 138.650, a judgment dismissing a meritless petition is not appealable.”
— Or. Rev. Stat. § 138.650(1) — 11 cases
Adams v. Nooth, 245 P.3d 173 (Or. Ct. App. 2010).
“[1] ORS 138.650(1) provides, in part, that either party to a post-conviction relief proceeding may appeal to this court and that the manner of taking the appeal and scope of review shall be the same as that provided by law for appeals in criminal actions except that "[t]he trial…”
McDonnell v. Premo, 483 P.3d 640 (Or. Ct. App. 2021).
“The petition also alleged an “outrageous and prejudicial delay” in the proceedings. The post-conviction court issued a lengthy letter opinion addressing petitioner’s claims and denying relief.”
Cunningham v. Premo, 373 P.3d 1167 (Marion Cty. Cir. Ct., O.R. 2016).
“205, which pertains to civil appeals generally, defendant correctly notes that specific authority for an appeal of a judgment on a petition for post-conviction relief is provided by ORS 138.650. See ORS 138.650(1) (providing that “[ejither the petitioner or the defendant may…”
— Or. Rev. Stat. § 138.650(2) — 1 case
State v. Ainsworth, 213 P.3d 1225 (Or. 2009).
“200(5) (describing procedure and requirements for obtaining delayed appeal outside the normal time limits for appeals in juvenile cases). Indeed, ORS 138.071(5)(c) now includes a provision that, in a criminal case only, allows for a delayed appeal up to 90 days after the…”
— Or. Rev. Stat. § 138.650(2)(a) — 2 cases
— Or. Rev. Stat. § 138.650(3) — 2 cases
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