2015 ORS 138.125¹
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 (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. [2013 c.151 §1]

Note: 138.125 (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.

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)

Atty. Gen. 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


1 Legislative Counsel Committee, CHAPTER 138—Appeals; Post-Conviction Relief, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors138.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano138.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.