ORS 138.285
Order staying execution of sentence


(1)

Intentionally left blank —Ed.

(a)

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

(b)

Except for good cause shown, a motion for an order under this section must be filed in the trial court no later than the filing of a notice of appeal. The trial court retains jurisdiction to enter an order under this section irrespective of whether a notice of appeal has been filed.

(c)

Except as otherwise required by this section, the trial court may impose conditions on a stay that the trial court determines are appropriate.

(2)

In determining whether to enter an order staying the execution of all of a sentence, or a portion of a sentence, the trial court shall consider the following factors:

(a)

The nature of the offense;

(b)

The severity of the sentence imposed;

(c)

The health of the defendant;

(d)

The character and strength of the evidence;

(e)

The criminal history of the defendant;

(f)

If the sentence, or the portion of the sentence, sought to be stayed includes a term of incarceration, the likelihood that the defendant will:

(A)

Appear in court at all appropriate times;

(B)

Comply with any other conditions of release; and

(C)

Complete, or substantially complete, serving the term of incarceration before the appeal is decided;

(g)

The likelihood that an appellate court will reverse the sentence, or the portion of the sentence, sought to be stayed or will reverse the judgment of conviction that includes the sentence, or the portion of the sentence, sought to be stayed; and

(h)

If an appellate court has issued a decision reversing the sentence, or a portion of the sentence, sought to be stayed or reversing the judgment of conviction that includes the sentence, or the portion of the sentence, sought to be stayed:

(A)

Whether the reversal or any other relief described in the appellate decision will result in the defendant having completed serving the term of incarceration imposed; and

(B)

Whether the appellate decision remands the case for a new trial.

(3)

If the trial court enters an order staying a term of incarceration, the court:

(a)

May order that the conditions of the release agreement and any posted security stand pending resolution of the appeal or may order an increase or reduction in the amount of security.

(b)

Shall order that the defendant, as a condition of release:

(A)

Duly prosecute the appeal of the defendant as required by ORS 138.005 (Definitions for ORS 138.010 to 138.310) to 138.500 (Appointment of counsel and furnishing of transcript for appellant without funds);

(B)

Appear at such time and place as the court may direct;

(C)

Not depart this state without leave of the court; and

(D)

If the judgment is affirmed, or the judgment is reversed and the case is remanded for a new trial, immediately appear as required by the trial court.

(4)

If the court enters an order staying the payment of a monetary obligation, the court may order the defendant:

(a)

To deposit, pending resolution of the appeal, the whole or any part of the monetary obligation with the clerk of the trial court;

(b)

To file an undertaking with sufficient sureties;

(c)

To submit to an examination of assets; or

(d)

To refrain from dissipating the assets of the defendant. [Formerly 138.125]
Note: 138.285 (Order staying execution of sentence) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 138 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Source: Section 138.285 — Order staying execution of sentence, https://www.­oregonlegislature.­gov/bills_laws/ors/ors138.­html.

Notes of Decisions

Under former similar statute (ORS 138.135)

Trial court has authority and responsibility for deciding whether defendant should be released pending appeal. State v. Wimber, 108 Or App 1, 814 P2d 169 (1991)

Attorney General Opinions

Under former similar statute (ORS 138.135)

Corrections Division Field Services authority to supervise person placed on probation during pendency of appeal, (1983) Vol 44, p 16

138.005
Definitions for ORS 138.010 to 138.310
138.010
Mode of review
138.015
Statutes applicable to appeals
138.020
Who may appeal
138.030
Parties designated “appellant” and “respondent”
138.035
Appeal by defendant
138.045
Appeal by state
138.052
Appeal from judgment of conviction and sentence of death
138.057
Appeal from judgment involving violation
138.065
Appeal from judgment or order deciding special statutory proceeding
138.071
Time within which appeal must be taken
138.081
Service and filing of notice of appeal
138.085
Content requirements for certain notices of appeal
138.090
Signature to notice of appeal
138.105
Appeal by defendant
138.115
Appeal by state
138.210
Failure to file brief by appellant
138.225
Summary affirmation
138.227
Joint motion to vacate and remand
138.255
Court of Appeals certification of appeal to Supreme Court in lieu of disposition
138.257
Determination on appeal
138.261
Time within which certain appeals must be decided
138.275
Notice to parties concerning modified judgment or order or supplemental judgment
138.285
Order staying execution of sentence
138.295
Stay of judgment or order on appeal by state
138.305
Delivery of defendant under sentence of imprisonment to intake center
138.310
Notice to court below when public defense services executive director certifies costs, expenses or compensation
138.480
Public Defense Services Commission to provide representation for prisoner in proceeding before appellate court
138.500
Appointment of counsel and furnishing of transcript for appellant without funds
138.504
Waiver of counsel
138.510
Persons who may file petition for relief
138.520
Relief which court may grant
138.525
Dismissal of meritless petition
138.527
Frivolous petition or response
138.530
When relief must be granted
138.540
Petition for relief as exclusive remedy for challenging conviction
138.550
Availability of relief as affected by prior judicial proceedings
138.560
Procedure upon filing petition for relief
138.570
Who shall be named as defendant
138.580
Petition
138.585
Access to confidential jury records
138.590
Petitioner may proceed as a financially eligible person
138.610
Pleadings
138.615
Disclosure of witness information
138.620
Hearing
138.622
Appearance by communication device
138.625
Victim testimony
138.627
Victim’s rights
138.630
Evidence of events occurring at trial of petitioner
138.640
Judgment
138.650
Appeal
138.660
Summary affirmation of judgment
138.665
Remand for reconsideration of judgment or order
138.670
Admissibility, at new trial, of testimony of witness at first trial
138.680
Short title
138.686
Automatic stay of sentence of death for federal appeal and state post-conviction relief
138.688
Definitions
138.690
Commencement of DNA testing proceedings
138.692
Motion for DNA testing
138.694
Appointed counsel
138.696
Test results
138.697
Appeal of court order
138.698
Effect of setting aside conviction on plea agreement
138.700
Entry of unidentified profile into DNA databases
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