ORS 138.520¹
Relief which court may grant

The relief which a court may grant or order under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) 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 rearrangement, retrial, custody and release on security. [1959 c.636 §2; 1999 c.1051 §258]

Notes of Decisions

Where there was a substantial ques­tion, at the time thereof, of the peti­tioner’s competency to waive indict­ment, to waive trial by jury and to enter a plea of guilty the post-con­vic­­tion court shall con­duct a hearing to determine whether or not the peti­tioner was competent at the times in ques­tion. Brady v. Calloway, 11 Or App 30, 501 P2d 72 (1972), Sup Ct review denied

Post-con­vic­­tion court has authority to make release decision as part of or supple­mental to relief granted and has jurisdic­tion to grant supple­mentary orders respecting release and bail even though case is on ap­peal. Johnson v. Maass, 98 Or App 97, 778 P2d 508 (1989)

Post-con­vic­­tion relief may not be granted for attorney’s failure to investigate and present alibi de­fense that was based on false in­for­ma­­tion peti­tioner gave to his attorney. Johnson v. Maass, 99 Or App 693, 784 P2d 107 (1989), Sup Ct review denied

Post-con­vic­­tion court may apply remedy that is just and proper to correct error identified by peti­tioner, notwithstanding that applied remedy may exceed scope of remedy sought by peti­tioner. Brock v. Baldwin, 171 Or App 188, 14 P3d 651 (2000), Sup Ct review denied

Sentencing court may not modify sen­tence that has already been completely served. State v. Bisby, 212 Or App 86, 157 P3d 262 (2007), Sup Ct review denied

Notes of Decisions

Any per­son who is convicted of a crime may seek relief under this sec­tion, whether or not he is in custody, regardless of whether his con­vic­­tion is for a felony or misdemeanor. Morasch v. State, 261 Or 299, 493 P2d 1364 (1972)

Habeas corpus is a proper method of ques­tioning the constitu­tionality of treat­ment accorded prisoners. Bekins v. Cupp, 274 Or 115, 545 P2d 861 (1976)

These sec­tions afforded plain, speedy and adequate remedy in lower courts and state Supreme Court would not exercise original habeas corpus jurisdic­tion. Sweet v. Cupp, 640 F2d 233 (1981)

Post-con­vic­­tion relief is not suspension of writ of habeas corpus; it provides different pro­ce­dure but retains all necessary substantive and procedural advantages of the writ. Atkeson v. Cupp, 68 Or App 196, 680 P2d 772 (1984), Sup Ct review denied

Post-con­vic­­tion relief under these sec­tions is available to those convicted of DUII Class A traffic infrac­tions to remedy constitu­tional viola­tions. Evers v. State, 69 Or App 450, 685 P2d 1024 (1984)

Availability of post-con­vic­­tion relief to per­sons convicted under state law but not to those convicted under municipal law does not violate Article I, sec­tion 20, or equal protec­tion clause of Fourteenth Amend­ment, because per­sons convicted under municipal law do not constitute true class, and there is no discriminatory applica­tion of law. Hunter v. State of Oregon, 306 Or 529, 761 P2d 502 (1988)

Granting of delayed ap­peal authorized where necessary to rectify substantial denial of constitu­tional rights. State v. Macy, 316 Or 335, 851 P2d 579 (1993)

Federal constitu­tional principle requiring that facts that increase penalty for crime beyond statutory max­i­mum be submitted to jury does not apply retroactively to afford post-con­vic­­tion relief. Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004)

State will retroactively apply new federal rule re­gard­ing constitu­tionality only if rule places certain kinds of con­duct beyond proscrip­tion or if procedural rule affects funda­mental fairness re­quired for accurate con­vic­­tion. Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004)

Law Review Cita­tions

68 OLR 269 (1989)

1 Legislative Counsel Committee, CHAPTER 138—Conviction Relief, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors138.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano138.­html (2019) (last ac­cessed May 16, 2020).
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. Currency Information