ORS 138.620¹

(1) After the response of the defendant to the petition, the court shall proceed to a hearing on the issues raised. If the defendant’s response is by demurrer or motion raising solely issues of law, the circuit court need not order that petitioner be present at such hearing, as long as petitioner is represented at the hearing by counsel. At the hearing upon issues raised by any other response, the circuit court shall order that petitioner be present. Whenever the court orders that petitioner be present at the hearing, the court may order that petitioner appear by telephone or other communication device as provided in ORS 138.622 (Appearance by communication device) rather than in person.

(2) If the petition states a ground for relief, the court shall decide the issues raised and may receive proof by affidavits, depositions, oral testimony or other competent evidence. The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence. [1959 c.636 §12; 1996 c.4 §4; 2003 c.261 §4]

Notes of Decisions

Evidence, in post-con­vic­­tion pro­ceed­ing, that peti­tioner secured own ap­peal bond, contacted attorney following con­vic­­tion and sen­ten­cing, but failed to respond to attorney’s letter concerning pending ap­peal, was sufficient to support finding that peti­tioner was not denied counsel on ap­peal. Whitlow v. Kerner, 35 Or App 539, 581 P2d 976 (1978)

Where record showed that defendant was not informed of his rights prior to pleading guilty and there was no evidence to show that he otherwise knew what rights he waived by guilty plea, state failed to carry burden of proving that plea was voluntarily, knowingly and intelligently made. Boag v. State, 44 Or App, 605 P2d 304 (1980)

Where peti­tioner requests appoint­ment of counsel pursuant to ORS 138.590 (Petitioner may proceed as a financially eligible person), 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)

Where merits of peti­tion were not before court on mo­tion to dismiss for lack of subject matter jurisdic­tion and court nonetheless considered merits and made factual determina­tion that post-con­vic­­tion relief was unavailable without according peti­tioner opportunity to present evidence or be heard otherwise on claim, court erred in dismissing on merits. McClaflin v. Wright, 101 Or App 10, 788 P2d 1027 (1990)

Completed Cita­tions

James v. Cupp, 5 Or App 181, 482 P2d 543 (1971), Sup Ct review denied; Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), 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