ORS 138.670¹
Admissibility, at new trial, of testimony of witness at first trial

In the event that a new trial is ordered as the relief granted in a proceeding pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title), a properly authenticated transcript of testimony in the first trial may be introduced in evidence to supply the testimony of any witness at the first trial who has since died or who cannot be produced at the new trial for other sufficient cause. Such transcript shall not be admissible in any other respect, except that the transcript of testimony of a witness at the first trial may be used at the new trial to impeach the testimony at the new trial by the same witness. [1959 c.636 §20]

§§ 138.510 (Persons who may file petition for relief) to 138.680 (Short title)

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