2017 ORS 137.223¹
Order setting aside judgment of guilty except for insanity
  • fees
  • procedure
  • effect of order

(1) A person who has been found guilty except for insanity of an offense for which, if convicted, the person could apply for entry of an order setting aside the conviction pursuant to ORS 137.225 (Order setting aside conviction or record of criminal charge), may by motion apply to the court for entry of an order setting aside the judgment finding the person guilty except for insanity of the offense.

(2) A person described in subsection (1) of this section may file the motion to set aside a judgment of guilty except for insanity any time after three years from the date of entry of the judgment of guilty except for insanity, provided that:

(a) The person is no longer under the jurisdiction of the Psychiatric Security Review Board; and

(b) The person has no other findings of guilty except for insanity within the 10 years prior to filing the motion and no convictions for offenses other than motor vehicle violations within the 10 years prior to filing the motion.

(3)(a) A copy of the motion and a full set of the defendant’s fingerprints shall be served upon the office of the prosecuting attorney who prosecuted the offense and opportunity shall be given to contest the motion. The fingerprint card with the notation “motion for setting aside judgment of guilty except for insanity” shall be forwarded to the Department of State Police. Information resulting from the fingerprint search along with the fingerprint card shall be returned to the prosecuting attorney.

(b) When a prosecuting attorney is served with a copy of a motion to set aside a judgment of guilty except for insanity under this section, the prosecuting attorney shall provide a copy of the motion and notice of the hearing date to the victim, if any, of the offense by mailing a copy of the motion and notice to the victim’s last-known address.

(c) When a person files a motion under this section, the person must pay a fee of $80 to the Department of State Police. The person shall attach a certified check payable to the Department of State Police in the amount of $80 to the fingerprint card that is served upon the prosecuting attorney. The office of the prosecuting attorney shall forward the check with the fingerprint card to the Department of State Police.

(d) In addition to the fee established under paragraph (c) of this subsection, the person must pay the filing fee established under ORS 21.135 (Standard filing fee).

(4)(a) Upon hearing the motion, the court may require the filing of such affidavits and may require the taking of such proofs as the court deems proper. The court shall allow the victim, if any, to make a statement at the hearing.

(b) Except as otherwise provided in paragraph (c) of this subsection, if the court determines that the circumstances and behavior of the person from the date of the judgment of guilty except for insanity to the date of the hearing on the motion warrant the court granting the motion, the court shall enter an order setting aside the judgment of guilty except for insanity.

(c) Unless the court makes written findings by clear and convincing evidence that granting the motion would not be in the best interests of justice, the court shall grant the motion and enter an order as provided in paragraph (b) of this subsection if the defendant was found guilty except for insanity of an offense described in ORS 137.225 (Order setting aside conviction or record of criminal charge) (12) and is otherwise eligible for relief under this section.

(d) An order entered under this subsection shall state the original arrest charge and the charge for which the person was found guilty except for insanity. The order shall further state that positive identification has been established by the Department of State Police and further identified as to Department of State Police number or submitting agency number.

(5)(a) Upon the entry of an order under subsection (4) of this section:

(A) The person, for purposes of the law, shall be deemed not to have been previously found guilty except for insanity, and the court shall issue an order sealing the records of the case, including the records of arrest, whether or not the arrest resulted in a further criminal proceeding.

(B) The court shall inform the person that the person’s right to possess, purchase or otherwise acquire a firearm remains prohibited under federal law.

(b) For purposes of this subsection, records of the case do not include medical records that are in the possession of the Psychiatric Security Review Board, including medical evaluations and reports submitted from other agencies concerning the status or compliance of the person.

(6) The clerk of the court shall forward a certified copy of the order entered under subsection (5) of this section to such agencies as directed by the court. A certified copy shall be sent to the Psychiatric Security Review Board. Upon entry of the order, the judgment of guilty except for insanity shall be deemed not to have been entered, and the person may answer accordingly any questions relating to its occurrence.

(7) For purposes of any civil action in which truth is an element of a claim for relief or affirmative defense, the provisions of subsection (6) of this section providing that the judgment of guilty except for insanity be deemed not to have been entered do not apply and a party may apply to the court for an order requiring disclosure of the official records in the case as may be necessary in the interests of justice.

(8) Upon motion of any prosecutor or defendant in a case involving records sealed under this section, supported by affidavit showing good cause, the court with jurisdiction may order the reopening and disclosure of any records sealed under this section for the limited purpose of assisting the investigation of the movant. However, such an order has no other effect on the orders setting aside the judgment of guilty except for insanity. [2015 c.320 §1; 2017 c.442 §16]

Note: The amendments to 137.223 (Order setting aside judgment of guilty except for insanity) by section 16, chapter 442, Oregon Laws 2017, become operative July 1, 2018. See section 36, chapter 442, Oregon Laws 2017. The text that is operative until July 1, 2018, is set forth for the user’s convenience.

137.223 (Order setting aside judgment of guilty except for insanity). (1) A person who has been found guilty except for insanity of an offense for which, if convicted, the person could apply for entry of an order setting aside the conviction pursuant to ORS 137.225 (Order setting aside conviction or record of criminal charge), may by motion apply to the court for entry of an order setting aside the judgment finding the person guilty except for insanity of the offense.

(2) A person described in subsection (1) of this section may file the motion to set aside a judgment of guilty except for insanity any time after three years from the date of entry of the judgment of guilty except for insanity, provided that:

(a) The person is no longer under the jurisdiction of the Psychiatric Security Review Board or the Oregon Health Authority; and

(b) The person has no other findings of guilty except for insanity within the 10 years prior to filing the motion and no convictions for offenses other than motor vehicle violations within the 10 years prior to filing the motion.

(3)(a) A copy of the motion and a full set of the defendant’s fingerprints shall be served upon the office of the prosecuting attorney who prosecuted the offense and opportunity shall be given to contest the motion. The fingerprint card with the notation “motion for setting aside judgment of guilty except for insanity” shall be forwarded to the Department of State Police. Information resulting from the fingerprint search along with the fingerprint card shall be returned to the prosecuting attorney.

(b) When a prosecuting attorney is served with a copy of a motion to set aside a judgment of guilty except for insanity under this section, the prosecuting attorney shall provide a copy of the motion and notice of the hearing date to the victim, if any, of the offense by mailing a copy of the motion and notice to the victim’s last-known address.

(c) When a person files a motion under this section, the person must pay a fee of $80 to the Department of State Police. The person shall attach a certified check payable to the Department of State Police in the amount of $80 to the fingerprint card that is served upon the prosecuting attorney. The office of the prosecuting attorney shall forward the check with the fingerprint card to the Department of State Police.

(d) In addition to the fee established under paragraph (c) of this subsection, the person must pay the filing fee established under ORS 21.135 (Standard filing fee).

(4)(a) Upon hearing the motion, the court may require the filing of such affidavits and may require the taking of such proofs as the court deems proper. The court shall allow the victim, if any, to make a statement at the hearing.

(b) Except as otherwise provided in paragraph (c) of this subsection, if the court determines that the circumstances and behavior of the person from the date of the judgment of guilty except for insanity to the date of the hearing on the motion warrant the court granting the motion, the court shall enter an order setting aside the judgment of guilty except for insanity.

(c) Unless the court makes written findings by clear and convincing evidence that granting the motion would not be in the best interests of justice, the court shall grant the motion and enter an order as provided in paragraph (b) of this subsection if the defendant was found guilty except for insanity of an offense described in ORS 137.225 (Order setting aside conviction or record of criminal charge) (12) and is otherwise eligible for relief under this section.

(d) An order entered under this subsection shall state the original arrest charge and the charge for which the person was found guilty except for insanity. The order shall further state that positive identification has been established by the Department of State Police and further identified as to Department of State Police number or submitting agency number.

(5)(a) Upon the entry of an order under subsection (4) of this section:

(A) The person, for purposes of the law, shall be deemed not to have been previously found guilty except for insanity, and the court shall issue an order sealing the records of the case, including the records of arrest, whether or not the arrest resulted in a further criminal proceeding.

(B) The court shall inform the person that the person’s right to possess, purchase or otherwise acquire a firearm remains prohibited under federal law.

(b) For purposes of this subsection, records of the case do not include medical records that are in the possession of the Psychiatric Security Review Board or the Oregon Health Authority, including medical evaluations and reports submitted from other agencies concerning the status or compliance of the person.

(6) The clerk of the court shall forward a certified copy of the order entered under subsection (5) of this section to such agencies as directed by the court. A certified copy shall be sent to the Psychiatric Security Review Board or the Oregon Health Authority, as appropriate. Upon entry of the order, the judgment of guilty except for insanity shall be deemed not to have been entered, and the person may answer accordingly any questions relating to its occurrence.

(7) For purposes of any civil action in which truth is an element of a claim for relief or affirmative defense, the provisions of subsection (6) of this section providing that the judgment of guilty except for insanity be deemed not to have been entered do not apply and a party may apply to the court for an order requiring disclosure of the official records in the case as may be necessary in the interests of justice.

(8) Upon motion of any prosecutor or defendant in a case involving records sealed under this section, supported by affidavit showing good cause, the court with jurisdiction may order the reopening and disclosure of any records sealed under this section for the limited purpose of assisting the investigation of the movant. However, such an order has no other effect on the orders setting aside the judgment of guilty except for insanity.

Note: 137.223 (Order setting aside judgment of guilty except for insanity) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 137 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

1 Legislative Counsel Committee, CHAPTER 137—Judgment and Execution; Parole and Probation by the Court, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors137.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 OregonLaws.org contains the con­tents of Volume 21 of the ORS, inserted along­side the per­tin­ent statutes. See the preface to the ORS An­no­ta­tions for more information.
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.