Chapter 138 — Chapter 138

ORS 138.261 Time within which certain appeals must be decided. (1) When a defendant is charged with a felony and is in custody pending an appeal under ORS 138.045 (1)(a), (b) or (d), the Court of Appeals and the Supreme Court shall decide the appeal within the time limits prescribed by this section

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ORS 138.265 [1981 c.178 §6; repealed by 1985 c.734 §20]

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ORS 138.270 [Amended by 1981 c.178 §7; repealed by 1985 c.734 §20]

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ORS 138.275 Notice to parties concerning modified judgment or order or supplemental judgment. If the appellate court, during the pendency of an appeal, receives from the trial court an amended, corrected or supplemental judgment or an amended or corrected appealable order, the appellate court shall notify the attorney of record for the state and the attorney of record for the defendant or, if the defendant is not represented by an attorney, the defendant. [2017 c.529 §10]

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ORS 138.280 [Amended by 1959 c.558 §41; 1981 c.178 §8; repealed by 1985 c.734 §20]

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ORS 138.285 Order staying execution of sentence. (1)(a) A justice, municipal or circuit court may enter an order in a criminal action as defined in ORS 131.005 staying execution of a sentence, or a portion of a sentence, pending the resolution of an appeal

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ORS 138.290 [Amended by 1981 c.178 §9; repealed by 1985 c.734 §20]

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ORS 138.295 Stay of judgment or order on appeal by state; release. An appeal taken by the state stays the effect of the judgment or order in favor of the defendant, so that the release agreement and, if applicable, the security for release, is held for the appearance and surrender of the defendant until the final determination of the appeal and the proceedings consequent thereon, if any; but if the defendant is in custody, the defendant may be released by the court subject to ORS 135.230 to 135.290, pending the appeal. [Formerly 138.160]

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ORS 138.300 [Amended by 1969 c.198 §68; 1983 c.763 §15; repealed by 2017 c.529 §26]

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ORS 138.305 Delivery of defendant under sentence of imprisonment to intake center. If the confinement designated by the court is the custody of the Department of Corrections, the defendant may be taken to a designated intake center during normal business hours unless prior arrangements have been made with the department. To the extent possible, the county taking a defendant to a designated intake center shall notify the department one business day prior to the defendant’s arrival. The county may not take the defendant to a designated intake center if the court has ordered the retention of the defendant at the place of original custody for the period of time deemed necessary by the court for preparation of an appeal. [Formerly 138.145]

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ORS 138.310 Notice to court below when executive director of Oregon Public Defense Commission certifies costs, expenses or compensation. When the executive director of the Oregon Public Defense Commission pays costs, expenses or compensation under ORS 138.500 (5) on appeal in a criminal action, the executive director shall notify the court below of the costs, expenses and compensation paid in order that the court below may exercise its discretion under ORS 151.505 or 161.665 (2). [1983 c.763 §14; 1989 c.1053 §10; 1991 c.790 §16; 1997 c.761 §11; 2001 c.962 §69; 2007 c.291 §2; 2023 c.281 §28]

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ORS 138.410 [Formerly 138.810; repealed by 1967 c.372 §13]

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ORS 138.420 [Formerly 138.820; repealed by 1967 c.372 §13]

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ORS 138.430 [Formerly 138.830: repealed by 1967 c.372 §13]

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ORS 138.440 [Formerly 138.840; 1961 c.480 §1; repealed by 1967 c.372 §13]

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ORS 138.480 Oregon Public Defense Commission to provide representation for prisoner in proceeding before appellate court. The Supreme Court or the Court of Appeals may, in its discretion, at the request of an individual who is deprived of liberty by a judgment, is without means to retain an attorney and is without the aid of an attorney, direct the Oregon Public Defense Commission to provide representation for the individual in a proceeding before it to test the validity of that judgment. [1963 c.600 §10; 1969 c.198 §69; 2001 c.962 §28; 2023 c.281 §29]

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ORS 138.490 [1963 c.600 §11; 1969 c.198 §70; 1977 c.752 §5; 1979 c.867 §2; 1981 s.s. c.3 §125; 1985 c.502 §22; 1989 c.1053 §5; 1993 c.33 §302; 2001 c.962 §104; repealed by 2001 c.962 §115]

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ORS 138.500 Appointment of counsel and furnishing of transcript for appellant without funds; compensation. (1) If a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 wishes to appeal from an appealable adverse final order or judgment of a circuit court and if the person is without funds to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case for the appeal, the person may request the circuit court from which the appeal is or would be taken to appoint counsel to represent the person on appeal. The following apply to a request under this subsection

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ORS 138.504 Waiver of counsel; appointment of legal advisor. (1) If the defendant wishes to waive counsel in the appeal of a criminal action to the Court of Appeals or on review of a criminal action by the Supreme Court, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense

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ORS 138.510 Persons who may file petition for relief; time limit. (1) Except as otherwise provided in ORS 138.540, any person convicted of a crime under the laws of this state may file a petition for post-conviction relief pursuant to ORS 138.510 to 138.680

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ORS 138.520 Relief which court may grant. The relief which a court may grant or order under ORS 138.510 to 138.680 shall include release, new trial, modification of sentence, and such other relief as may be proper and just. The court may also make supplementary orders to the relief granted, concerning such matters as rearraignment, retrial, custody and release on security. [1959 c.636 §2; 1999 c.1051 §258]

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ORS 138.525 Dismissal of meritless petition. (1) The court may, on its own motion or on the motion of the defendant, enter a judgment denying a meritless petition brought under ORS 138.510 to 138.680

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ORS 138.527 Frivolous petition or response; attorney fees. (1) In addition to any other relief a court may grant or order under ORS 138.510 to 138.680, the court shall award attorney fees to the prevailing party if the court finds that the other party’s petition or response was frivolous

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ORS 138.530 When relief must be granted; executive clemency or pardon powers and original jurisdiction of Supreme Court in habeas corpus not affected. (1) Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner

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ORS 138.540 Petition for relief as exclusive remedy for challenging conviction; when petition may not be filed; abolition or availability of other remedies. (1) Except as otherwise provided in ORS 138.510 to 138.680, a petition pursuant to ORS 138.510 to 138.680 shall be the exclusive means, after judgment rendered upon a conviction for a crime, for challenging the lawfulness of such judgment or the proceedings upon which it is based. The remedy created by ORS 138.510 to 138.680 does not replace or supersede the motion for new trial, the motion in arrest of judgment or direct appellate review of the sentence or conviction, and a petition for relief under ORS 138.510 to 138.680 shall not be filed while such motions or appellate review remain available. With the exception of habeas corpus, all common law post-conviction remedies, including the motion to correct the record, coram nobis, the motion for relief in the nature of coram nobis and the motion to vacate the judgment, are abolished in criminal cases

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ORS 138.550 Availability of relief as affected by prior judicial proceedings. The effect of prior judicial proceedings concerning the conviction of petitioner which is challenged in the petition shall be as specified in this section and not otherwise

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ORS 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

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ORS 138.570 Who shall be named as defendant; counsel for defendant. If the petitioner is imprisoned, the petition shall name as defendant the official charged with the confinement of petitioner. If the petitioner is not imprisoned, the defendant shall be the State of Oregon. Whenever the defendant is the superintendent of a Department of Corrections institution, the Attorney General shall act as the superintendent’s attorney in the proceedings. Whenever the defendant is some other official charged with the confinement of petitioner, the district attorney of the county wherein the petitioner is imprisoned shall be the attorney for the defendant. Whenever petitioner is not imprisoned, counsel for the State of Oregon as defendant shall be the district attorney of the county in which petitioner’s conviction and sentence were rendered. Whenever the petitioner is released from imprisonment during the pendency of any proceedings pursuant to ORS 138.510 to 138.680, the State of Oregon shall be substituted as defendant. Upon such substitution, counsel for the original defendant shall continue to serve as counsel for the substituted defendant. [1959 c.636 §7; 1983 c.505 §15; 1987 c.320 §45]

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ORS 138.580 Petition. The petition shall be certified by the petitioner. Facts within the personal knowledge of the petitioner and the authenticity of all documents and exhibits included in or attached to the petition must be sworn to affirmatively as true and correct. The Supreme Court, by rule, may prescribe the form of the certification. The petition shall identify the proceedings in which petitioner was convicted and any appellate proceedings thereon, give the date of entry of judgment and sentence complained of and identify any previous post-conviction proceedings that the petitioner has undertaken to secure a post-conviction remedy, whether under ORS 138.510 to 138.680 or otherwise, and the disposition thereof. The petition shall set forth specifically the grounds upon which relief is claimed and shall state clearly the relief desired. All facts within the personal knowledge of the petitioner shall be set forth separately from the other allegations of fact and shall be certified as provided in this section. Except as provided in rules adopted under ORS 1.002, affidavits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition. Argument, citations and discussion of authorities shall be omitted from the petition but may be submitted in a separate memorandum of law. [1959 c.636 §8; 1991 c.885 §1; 1993 c.517 §4; 2015 c.119 §2]

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ORS 138.585 Access to confidential jury records. (1) A person who files a petition for post-conviction relief under ORS 138.510 to 138.680 and who seeks jury records that are confidential under ORS 10.215 must either include in the petition a request for access to the confidential records or file a motion in the proceedings seeking access to the confidential records. A motion under this subsection must be filed not later than 90 days before the hearing date for the petition, unless the court allows a later filing for good cause shown. The petition or motion, and any supporting affidavit for the petition or motion, must be served on the trial court administrator for the court that entered the judgment of conviction and on the State Court Administrator. The request for confidential records must

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ORS 138.590 Petitioner may proceed as a financially eligible person. (1) Any petitioner who is unable to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680 or to employ suitable counsel possessing skills and experience commensurate with the nature of the conviction and complexity of the case for the proceeding may proceed as a financially eligible person pursuant to this section upon order of the circuit court in which the petition is filed

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ORS 138.600 [1959 c.636 §10; repealed by 1997 c.872 §6]

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ORS 138.610 Pleadings. Within 30 days after the docketing of the petition, or within any further time the court may fix, the defendant shall respond by demurrer, answer or motion. No further pleadings shall be filed except as the court may order. The court may grant leave, at any time prior to entry of judgment, to withdraw the petition. The court may make appropriate orders as to the amendment of the petition or any other pleading, or as to the filing of further pleadings, or as to extending the time of the filing of any pleading other than the original petition. [1959 c.636 §11]

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ORS 138.615 Disclosure of witness information. (1) In any proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680, a party shall provide to the other party, upon written request of the other party or an order of the court, the identity of and, except as provided in subsection (5) of this section, the contact information for any person who is a potential witness, whether the person may be called to testify at the proceeding or provide sworn written testimony

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ORS 138.620 Hearing. (1) After the response of the defendant to the petition, the court shall proceed to a hearing on the issues raised. If the defendant’s response is by demurrer or motion raising solely issues of law, the circuit court need not order that petitioner be present at such hearing, as long as petitioner is represented at the hearing by counsel. At the hearing upon issues raised by any other response, the circuit court shall order that petitioner be present. Whenever the court orders that petitioner be present at the hearing, the court may order that petitioner appear by telephone or other communication device as provided in ORS 138.622 rather than in person

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ORS 138.622 Appearance by communication device. For the purpose of a court appearance under ORS 138.510 to 138.680, the court may approve the appearance of the parties, counsel for the parties or witnesses by telephone or other communication device approved by the court. However, the court may not approve the appearance of the petitioner or counsel for the petitioner by telephone or other communication device unless the facilities used enable the petitioner to consult privately with the petitioner’s counsel during the proceedings. [2003 c.261 §3]

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ORS 138.625 Victim testimony; contact with victim. (1) A petitioner in a post-conviction relief proceeding may not compel a victim to testify, either by deposition, hearing or otherwise, unless the petitioner moves for an order of the court allowing a subpoena

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ORS 138.627 Victim’s rights. (1) To accord crime victims due dignity and respect, a victim of a crime that is the subject of a petition for post-conviction relief filed under ORS 138.510 to 138.680 has, upon request, the following rights

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ORS 138.630 Evidence of events occurring at trial of petitioner. In a proceeding pursuant to ORS 138.510 to 138.680, events occurring at the trial of petitioner may be shown by a duly authenticated transcript, record or portion thereof. If such transcript or record cannot be produced, the affidavit of the judge who presided at the trial setting forth the facts occurring at the trial shall be admissible in evidence when relevant. When necessary to establish any ground for relief specified in ORS 138.530, the petitioner may allege and prove matters in contradiction of the record of the trial of the petitioner. When the record is so contradicted, the defendant may introduce in evidence any evidence which was admitted in evidence at the trial to support the contradicted matter and may call witnesses whose testimony at such trial supported the contradicted matter. Whenever such evidence or such witnesses cannot be produced by defendant for any reason which is sufficient in the opinion of the court, such parts of the duly authenticated record of the trial as support the contradicted matter may be introduced in evidence by the defendant. A duly authenticated record of the testimony of any witness at the trial may be introduced in evidence to impeach the credibility of any testimony by the same witness in the hearing upon the petition. [1959 c.636 §13]

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ORS 138.640 Judgment; enforcement. (1) After deciding the issues raised in the proceeding, the court shall enter a judgment denying the petition or granting the appropriate relief. The judgment may include orders as provided in ORS 138.520. The judgment must clearly state the grounds on which the cause was determined, and whether a state or federal question was presented and decided

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ORS 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

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ORS 138.660 Summary affirmation of judgment; dismissal of appeal. In reviewing the judgment of the circuit court in a proceeding pursuant to ORS 138.510 to 138.680, the Court of Appeals on its own motion or on motion of respondent may summarily affirm, after submission of the appellant’s brief and without submission of the respondent’s brief, the judgment on appeal without oral argument if it 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 the appeal under this section shall constitute a decision upon the merits of the appeal. [1959 c.636 §19; 1963 c.557 §2; 1969 c.198 §73; 1995 c.295 §4]

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ORS 138.665 Remand for reconsideration of judgment or order; appeal. (1) Upon joint motion of the parties to an appeal in a post-conviction relief proceeding, the court may vacate the judgment or order from which the appeal was taken and remand the matter to the circuit court to reconsider the judgment or order. Upon remand, the circuit court shall have jurisdiction to enter a revised judgment or order

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ORS 138.670 Admissibility, at new trial, of testimony of witness at first trial. In the event that a new trial is ordered as the relief granted in a proceeding pursuant to ORS 138.510 to 138.680, a properly authenticated transcript of testimony in the first trial may be introduced in evidence to supply the testimony of any witness at the first trial who has since died or who cannot be produced at the new trial for other sufficient cause. Such transcript shall not be admissible in any other respect, except that the transcript of testimony of a witness at the first trial may be used at the new trial to impeach the testimony at the new trial by the same witness. [1959 c.636 §20]

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ORS 138.680 Short title. ORS 138.510 to 138.680 may be cited as the Post-Conviction Hearing Act. [1959 c.636 §21]

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ORS 138.685 [1991 c.885 §3; repealed by 1999 c.1055 §15]

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ORS 138.686 Automatic stay of sentence of death for federal appeal and state post-conviction relief. (1) The execution of a sentence of death is automatically stayed for 90 days following the effective date of an appellate judgment affirming the sentence of death on automatic and direct review

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ORS 138.687 [1991 c.885 §4; repealed by 1999 c.1055 §15]

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ORS 138.688 Definitions. As used in ORS 138.688 to 138.700

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ORS 138.690 Commencement of DNA testing proceedings; discovery. (1) A person may file in the circuit court in which the judgment of conviction was entered a petition requesting the commencement of a DNA testing proceeding, and requesting that the court appoint an attorney for the purpose of determining whether to file a motion under ORS 138.692 for the performance of DNA testing on specific evidence, if the person has been convicted of aggravated murder or a felony in which DNA evidence could exist and is related to the investigation or prosecution that resulted in the judgment of conviction

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