ORS 138.650¹

(1) Either the petitioner or the defendant may appeal to the Court of Appeals within 30 days after the entry of a judgment on a petition pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title). The manner of taking the appeal and the scope of review by the Court of Appeals and the Supreme Court shall be the same as that provided by law for appeals in criminal actions, except that:

(a) The trial court may provide that the transcript contain only such evidence as may be material to the decision of the appeal; and

(b) With respect to ORS 138.081 (Service and filing of notice of appeal) (1), if petitioner appeals, petitioner shall cause the notice of appeal to be served on the attorney for defendant, and, if defendant appeals, defendant shall cause the notice of appeal to be served on the attorney for petitioner or, if petitioner has no attorney of record, on petitioner.

(2)(a) Upon motion of the petitioner, the Court of Appeals shall grant the petitioner leave to file a notice of appeal after the time limit described in subsection (1) of this section if:

(A) The petitioner, by clear and convincing evidence, shows that the failure to file a timely notice of appeal is not attributable to the petitioner personally; and

(B) The petitioner shows a colorable claim of error in the proceeding from which the appeal is taken.

(b) The request for leave to file a notice of appeal after the time limit described in subsection (1) of this section shall be filed no later than 90 days after entry of the judgment from which the petitioner seeks to appeal and shall be accompanied by the notice of appeal sought to be filed. A request for leave under this subsection may be filed by mail. The date of filing shall be the date of mailing if the request is mailed as provided in ORS 19.260 (Filing by mail or delivery).

(c) The Court of Appeals may not grant relief under this subsection unless the defendant has received notice of and an opportunity to respond to the petitioner’s request for relief.

(3) A party cross-appealing shall serve and file the notice of cross-appeal:

(a) Within 10 days of the expiration of the time allowed in subsection (1) of this section; or

(b) If the petitioner’s notice of appeal is filed pursuant to subsection (2) of this section, within 10 days of the expiration of the time allowed in subsection (2) of this section.

(4) An appeal under this section taken by the defendant stays the effect of the judgment. If the petitioner is incarcerated, the trial court may stay the petitioner’s sentence pending the defendant’s appeal and order conditional release or security release, in accordance with ORS 135.230 (Definitions for ORS 135.230 to 135.290) to 135.290 (Punishment by contempt of court), only if:

(a) The post-conviction court’s judgment vacates the judgment of conviction or reduces the sentence or sentences imposed upon conviction;

(b) The petitioner has completed any other sentence of incarceration to which the petitioner is subject; and

(c) The petitioner otherwise would be entitled to immediate release from incarceration under the court’s judgment.

(5) In an appeal under this section or to the United States Supreme Court, the Attorney General shall represent the defendant. [1959 c.636 §18; 1963 c.557 §1; 1969 c.198 §72; 1971 c.565 §26; 1987 c.852 §3; 2003 c.576 §246; 2007 c.193 §1; 2019 c.399 §4]

Notes of Decisions

Factfinding by Court of Appeals in post-con­vic­­tion pro­ceed­ings is contrary to this sec­tion. Hartzog v. Keeney, 304 Or 57, 742 P2d 600 (1987)

Appellate review in post-con­vic­­tion pro­ceed­ing is limited to ques­tions of law. Yeager v. Maass, 93 Or App 561, 763 P2d 184 (1988), Sup Ct review denied

“Manner of taking ap­peal” refers to pro­ce­dures for filing and pros­e­cu­­tion of ap­peal, not to taxa­tion of appellate costs and disburse­ments. Schelin v. Maass, 147 Or App 351, 936 P2d 988 (1997), Sup Ct review denied

Good cause excep­tion (ORS 138.071 (Time within which appeal must be taken)) to 30-day time limit for filing notice of ap­peal in crim­i­nal case is not available for ap­peal from denial of post-con­vic­­tion relief. Felkel v. Thompson, 157 Or App 218, 970 P2d 657 (1998)

Delayed ap­peal is not available as remedy for claim of inadequate assistance of post-con­vic­­tion relief counsel. Miller v. Baldwin, 176 Or App 500, 32 P3d 234 (2001)

In post-con­vic­­tion ap­peal, reviewing court may reverse, affirm or modify judg­ment of post-con­vic­­tion court only if reviewing court finds error in issue appearing upon record. Pratt v. Armenakis, 199 Or App 448, 112 P3d 371 (2005), on reconsidera­tion 201 Or App 217, 118 P3d 821 (2005), Sup Ct review denied

Completed Cita­tions

Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied

Law Review Cita­tions

51 OLR 652 (1972)

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