Chapter 138 — Chapter 138
119 sections in this chapter.
ORS 138.005 Definitions for ORS 138.010 to 138.310. As used in ORS 138.010 to 138.310
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(1) Unless the context requires otherwise, the terms defined in ORS 19.005 have the meanings set forth in ORS 19.005. (2) “Appealable” means, in reference to a judgment or order rendered by a trial court, that the judgment or order is, by law, subject to appeal by a party. (3) “C…
ORS 138.010 Mode of review; abolition of writs of error and certiorari. Writs of error and of certiorari in criminal actions are abolished. The only mode of reviewing a judgment or order in a criminal action is that prescribed by ORS 138.010 to 138.310
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[Repealed or reserved.]
ORS 138.012 [1999 c.1055 §5; 2001 c.306 §2; renumbered 138.052 in 2017]
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[Repealed or reserved.]
ORS 138.015 Statutes applicable to appeals. The provisions of ORS 19.250, 19.260, 19.270, 19.365, 19.370, 19.380, 19.385, 19.390, 19.395, 19.435, 19.450 and 19.510 and, if the defendant is the appellant, the provisions of ORS 19.420 (3) shall apply to appeals to the Supreme Court and the Court of Appeals. [Formerly 138.185]
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[Repealed or reserved.]
ORS 138.020 Who may appeal. Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases prescribed in ORS 138.010 to 138.310, and not otherwise
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[Repealed or reserved.]
ORS 138.030 Parties designated “appellant” and “respondent”; title of action. The party appealing is known as the appellant and the adverse party as the respondent; but the title of the action is not changed in consequence of the appeal
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(Appealable Judgments and Orders)
ORS 138.035 Appeal by defendant. (1)(a) A defendant 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 judgment
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(A) Conclusively disposing of all counts in the accusatory instrument or conclusively disposing of all counts severed from other counts; (B) Convicting the defendant of at least one count; and (C) Imposing sentence on all counts of which the defendant was convicted. (b) For the p…
ORS 138.040 [Amended by 1959 c.558 §36; 1963 c.207 §1; 1969 c.198 §62; 1971 c.565 §19; 1977 c.372 §13; 1977 c.752 §1; 1985 c.348 §1; 1989 c.849 §4; 2001 c.870 §6; repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 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
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(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 ret…
ORS 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]
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[Repealed or reserved.]
ORS 138.052 Appeal from judgment of conviction and sentence of death; direct review by Supreme Court. (1) The judgment of conviction and sentence of death entered under ORS 163.150 (1)(f) is subject to automatic and direct review by the Supreme Court. The review by the Supreme Court has priority over all other cases and shall be heard in accordance with rules adopted by the Supreme Court
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(2) Notwithstanding ORS 163.150 (1)(a), after automatic and direct review of a conviction and sentence of death the following apply: (a) If a reviewing court finds prejudicial error in the sentencing proceeding only, the court may set aside the sentence of death and remand the ca…
ORS 138.053 [1989 c.849 §3; 1993 c.14 §16; 2001 c.644 §2; 2003 c.737 §101; repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.057 Appeal from judgment involving violation. (1) If a justice court or municipal court has become a court of record under ORS 51.025 or 221.342, an appeal from a judgment involving a violation shall be as provided in ORS chapter 19 for appeals from judgments entered by circuit courts, except that the standard of review is the same as for an appeal from a judgment in a proceeding involving a misdemeanor or felony
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(2)(a) If a justice court or municipal court has not become a court of record under ORS 51.025 or 221.342, the appeal from a judgment involving a violation entered by the justice court or municipal court may be taken to the circuit court for the county in which the justice court …
ORS 138.060 [Amended by 1963 c.385 §1; 1969 c.198 §64; 1969 c.529 §1; 1971 c.644 §1; 1973 c.836 §276; 1977 c.752 §2; 1989 c.790 §21a; 1997 c.852 §11; 1999 c.946 §2; 2001 c.870 §4; 2011 c.379 §1; 2017 c.529 §4; renumbered 138.045 in 2017]
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[Repealed or reserved.]
ORS 138.065 Appeal from judgment or order deciding special statutory proceeding. A party may appeal a judgment or order deciding a special statutory proceeding as provided in ORS 19.205. [2017 c.529 §12]
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[Repealed or reserved.]
ORS 138.070 [Repealed by 1971 c.565 §20 (138.071 enacted in lieu of 138.070)]
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(Notice of Appeal)
ORS 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
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(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 m…
ORS 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)]
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[Repealed or reserved.]
ORS 138.081 Service and filing of notice of appeal. (1) An appeal shall be taken by causing a notice of appeal in the form prescribed by ORS 19.250 to be served
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(a)(A) When the defendant appeals: (i) On the district attorney for the county in which the judgment is entered, if the appeal is from a conviction for a misdemeanor or felony under state law; (ii) On county counsel for the county in which the judgment is entered, if the appeal i…
ORS 138.083 [1989 c.790 §20; 1995 c.109 §1; 1997 c.389 §2; 2003 c.576 §165; 2007 c.547 §3; 2013 c.153 §1; repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.085 Content requirements for certain notices of appeal. (1) If a defendant appeals a judgment of conviction based only on a plea of guilty or no contest, the notice of appeal must
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(a) Include a statement that the defendant has reserved an issue for appeal under ORS 135.335; or (b) Identify a colorable claim of error reviewable under ORS 138.105. (2) If a defendant appeals from any of the following judgments or orders, the notice of appeal must identify a c…
ORS 138.090 Signature to notice of appeal. The notice of appeal shall be signed by
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(1) The district attorney for the county or by the Attorney General, when an appeal is taken on behalf of the State of Oregon in a prosecution of an offense created by state statute. (2) The defendant or an attorney for the defendant, when the defendant takes an appeal. (3) Count…
ORS 138.100 [Amended by 1959 c.558 §38; 1961 c.101 §1; repealed by 1971 c.565 §1]
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(Matters Reviewable on Appeal)
ORS 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
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(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 a…
ORS 138.110 [Amended by 1963 c.324 §1; 1971 c.565 §24; repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.115 Appeal by state. (1) On appeal by the state, the appellate court has authority to review the judgment or order being appealed, subject to the provisions of this section
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(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 involving the merits of, or necessarily affecting, the judgment o…
ORS 138.120 [Repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.125 [2013 c.151 §1; renumbered 138.285 in 2017]
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[Repealed or reserved.]
ORS 138.130 [Repealed by 1963 c.155 §1 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150)]
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[Repealed or reserved.]
ORS 138.135 [1963 c.155 §2 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150); 1967 c.372 §5; 1969 c.198 §66; 1977 c.752 §4; 1999 c.1051 §257; repealed by 2013 c.151 §4]
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[Repealed or reserved.]
ORS 138.140 [Amended by 1953 c.99 §2; 1955 c.660 §19; repealed by 1963 c.155 §1 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150)]
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[Repealed or reserved.]
ORS 138.145 [1963 c.155 §3 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150); 1973 c.836 §277; 1987 c.320 §43; 2003 c.458 §1; renumbered 138.305 in 2017]
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[Repealed or reserved.]
ORS 138.150 [Repealed by 1963 c.155 §1 (138.135 and 138.145 enacted in lieu of 138.130, 138.140 and 138.150)]
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[Repealed or reserved.]
ORS 138.160 [Amended by 1959 c.638 §20; 1973 c.836 §278; renumbered 138.295 in 2017]
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[Repealed or reserved.]
ORS 138.170 [Repealed by 1959 c.638 §26]
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[Repealed or reserved.]
ORS 138.180 [Repealed by 1959 c.558 §51]
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[Repealed or reserved.]
ORS 138.185 [1959 c.558 §39; 1969 c.198 §67; 1971 c.193 §29; 1971 c.565 §25; 1985 c.734 §19; 1987 c.852 §2; 1997 c.389 §26; 2017 c.529 §9; renumbered 138.015 in 2017]
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[Repealed or reserved.]
ORS 138.190 [Repealed by 1959 c.558 §51]
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[Repealed or reserved.]
ORS 138.200 [Repealed by 1959 c.558 §51]
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(Authority of Appellate Court)
ORS 138.210 Failure to file brief by appellant; appearance by defendant. If the appellant fails to file a brief in the appellate court, the court shall dismiss the appeal. The defendant need not personally appear in the appellate court. [Amended by 2017 c.529 §11]
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[Repealed or reserved.]
ORS 138.220 [Amended by 1959 c.558 §40; repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.222 [1989 c.790 §21; 1993 c.692 §2; 1993 c.698 §1; 1997 c.852 §9; 2001 c.644 §3; 2003 c.737 §102; 2005 c.563 §1; repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.225 Summary affirmation. In reviewing the judgment of any court under ORS 138.010 to 138.310, the Court of Appeals, on its own motion or on the motion of the respondent, may summarily affirm, without oral argument, the judgment after submission of the appellant’s brief and without submission of the respondent’s brief if the court finds that no substantial question of law is presented by the appeal. Notwithstanding ORS 2.570, the Chief Judge of the Court of Appeals may deny or, if the petitioner does not oppose the motion, grant a respondent’s motion for summary affirmation. A dismissal of appeal under this section constitutes a decision upon the merits of the appeal. [1995 c.295 §2]
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[Repealed or reserved.]
ORS 138.227 Joint motion to vacate and remand. (1) On joint motion of the parties to an appeal in a criminal case, the appellate court may vacate the judgment or order from which the appeal was taken and remand the matter to the trial court to reconsider the judgment or order, or any intermediate decision by the trial court. On remand, the trial court shall have jurisdiction to enter a modified judgment or order, or to reenter the vacated judgment or order
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(2) After entry of a judgment or order under subsection (1) of this section, either party may appeal in the same time and manner as an appeal from the original judgment or order. [1995 c.295 §3; 2017 c.529 §16]
ORS 138.230 [Repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.240 [Repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.250 [Amended by 1973 c.836 §279; repealed by 2017 c.529 §26]
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[Repealed or reserved.]
ORS 138.255 Court of Appeals certification of appeal to Supreme Court in lieu of disposition; party request for Supreme Court review. (1) An appeal to the Court of Appeals may be certified to the Supreme Court, and the Supreme Court may accept or deny acceptance of the certified appeal, as provided in ORS 19.405
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(2) At any time before the State Court Administrator sends notice to the parties of the date of oral argument or, if the case is not orally argued, the date that the State Court Administrator delivers the briefs to the Court of Appeals for decision, a party may request the Suprem…
ORS 138.257 Determination on appeal. (1) Except as otherwise provided in this section, the appellate court may affirm, reverse, vacate or modify the judgment or order, or any part thereof, from which the appeal was taken
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(2) Subject to Article VII (Amended), section 3, Oregon Constitution, the appellate court shall not reverse, modify or vacate a trial court judgment or order if there is little likelihood that any error affected the outcome. (3) Except as provided in subsection (4) of this sectio…
ORS 138.260 [Repealed by 1981 c.178 §18]
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[Repealed or reserved.]