2015 ORS 138.590¹
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 (Persons who may file petition for relief) to 138.680 (Short title) 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.

(2) If the petitioner wishes to proceed as a financially eligible person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title), including, but not limited to, the filing fee required by ORS 138.560 (Procedure upon filing petition for relief), or to employ suitable counsel for such a proceeding. The affidavit shall contain a brief statement of the petitioners assets and liabilities and income during the previous year. If the circuit court is satisfied that the petitioner is unable to pay such expenses or to employ suitable counsel, it shall order that the petitioner proceed as a financially eligible person. If the court finds that a petitioner who has been sentenced to death is not competent to decide whether to accept or reject the appointment of counsel, the court shall appoint counsel to represent the petitioner. However, when a circuit court orders petitioners case transferred to another circuit court as provided in ORS 138.560 (Procedure upon filing petition for relief) (4), the matter of petitioners proceeding as a financially eligible person shall be determined by the latter court.

(3) If a petitioner who has been sentenced to death qualifies for the appointment of counsel under this section but rejects the appointment, the court shall determine, after a hearing if necessary, whether the petitioner rejected the offer of counsel and made the decision with an understanding of its legal consequences. The court shall make appropriate findings on the record.

(4) In the order to proceed as a financially eligible person, the circuit court shall appoint suitable counsel to represent petitioner. Counsel so appointed shall represent petitioner throughout the proceedings in the circuit court. The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission.

(5) If counsel appointed by the circuit court determines that the petition as filed by petitioner is defective, either in form or in substance, or both, counsel may move to amend the petition within 15 days following counsels appointment, or within a further period as the court may allow. The amendment shall be permitted as of right at any time during this period. If appointed counsel believes that the original petition cannot be construed to state a ground for relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title), and cannot be amended to state a ground for relief, counsel shall, in lieu of moving to amend the petition, inform the petitioner and notify the circuit court of counsels belief by filing an affidavit stating the belief and the reasons therefor with the clerk of the circuit court. This affidavit does not constitute a ground for denying the petition prior to a hearing upon its sufficiency, but the circuit court may consider the affidavit in deciding upon the sufficiency of the petition at the hearing.

(6) When a petitioner has been ordered to proceed as a financially eligible person, the expenses which are necessary for the proceedings upon the petition in the circuit court and the compensation to appointed counsel for petitioner as provided in this subsection shall be paid by the public defense services executive director from funds available for the purpose. At the conclusion of proceedings on a petition pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title), the public defense services executive director shall determine and pay, as provided by the policies, procedures, standards and guidelines of the Public Defense Services Commission, the amount of expenses of petitioner and compensation for the services of appointed counsel in the proceedings in the circuit court.

(7) If the public defense services executive director denies, in whole or in part, expenses and compensation submitted for review and payment, the person who submitted the payment request may appeal the decision to the presiding judge of the circuit court. The presiding judge or the designee of the presiding judge shall review the public defense services executive directors decision for abuse of discretion. The decision of the presiding judge or the designee of the presiding judge is final.

(8)(a) When a petitioner has been authorized to proceed as a financially eligible person, all court fees in the circuit court, except for the filing fee required by ORS 138.560 (Procedure upon filing petition for relief), are waived.

(b) When a petitioner is allowed to file a petition without payment of the fee required by ORS 138.560 (Procedure upon filing petition for relief) due to inability to pay, the fee is not waived but may be drawn from, or charged against, the petitioners trust account if the petitioner is an inmate in a correctional facility.

(9) Notwithstanding any other provision of this chapter, a court may not appoint as counsel for a petitioner who has been sentenced to death a counsel who previously represented the petitioner at trial or on automatic and direct review in the case resulting in the death sentence unless the petitioner and the counsel expressly request continued representation. [1959 c.636 §9; 1961 c.480 §3; 1963 c.600 §9; 1973 c.836 §279a; 1979 c.867 §4; 1981 s.s. c.3 §127; 1983 c.763 §17; 1987 c.320 §46; 1989 c.1053 §7; 1991 c.827 §2; 1995 c.657 §5; 1999 c.1055 §8; 2001 c.962 §30; 2003 c.261 §§5,6; 2003 c.449 §§8,45]

Notes of Decisions

Fact that this sec­tion requires employ­ment of counsel for indigent peti­tioners does not, by itself, make Post-Convic­tion Release Act analogous to furnishing of counsel in crim­i­nal cases nor subject peti­tioners to ORS 161.665 (Costs), the Recoup­ment Statute. Hawk v. State of Oregon, 51 Or App 655, 626 P2d 931 (1981)

Where peti­tioner requests appoint­ment of counsel pursuant to this sec­tion, eligibility for appoint­ment must be determined prior to hearing which finally disposes of peti­tion. Rodacker v. State of Oregon, 79 Or App 31, 717 P2d 659 (1986)

Court may not dismiss filing of peti­tion for post-con­vic­­tion relief that is accompanied by affidavit of indigency and mo­tion for appoint­ment of counsel without first ruling on issue of indigency and appointing counsel if peti­tioner found to be indigent. Kumar v. Schiedler, 128 Or App 572, 876 P2d 808 (1994)

Peti­tioner alleging ineffective assistance of post-con­vic­­tion counsel is not entitled to hearing on mo­tion to replace counsel. Elkins v. Thompson, 174 Or App 307, 25 P3d 376 (2001), Sup Ct review denied

Court only may allow withdrawal of appointed counsel for financially eligible per­son without substituting an­oth­er appointed counsel when need for orderly and efficient judicial process requires court to do so. Knox v. Nooth, 244 Or App 57, 260 P3d 562 (2011)

Law Review Cita­tions

68 OLR 271 (1989)

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—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.