ORS 138.040¹
Appeal by defendant generally
  • reviewable matters

Except as provided under ORS 138.050 (Appeal from sentence on plea of guilty or no contest), the defendant may appeal to the Court of Appeals from a judgment or order described under ORS 138.053 (Judgments and orders that are subject to appeal) in a circuit court, and may cross-appeal when the state appeals pursuant to ORS 138.060 (Appeal by state) (1)(c) or (2)(a). The following apply upon such appeal or cross-appeal:

(1) The appellate court may review:

(a) Any decision of the court in an intermediate order or proceeding.

(b) Any disposition described under ORS 138.053 (Judgments and orders that are subject to appeal) as to whether it:

(A) Exceeds the maximum allowable by law; or

(B) Is unconstitutionally cruel and unusual.

(2) If the appellate court determines the disposition imposed exceeds the maximum allowable by law or is unconstitutionally cruel and unusual, the appellate court shall direct the court from which the appeal is taken to impose the disposition that should be imposed. [Amended by 1959 c.558 §36; 1963 c.207 §1; 1969 c.198 §62; 1971 c.565 §19; 1977 c.372 §13; 1977 c.752 §1; 1985 c.348 §1; 1989 c.849 §4; 2001 c.870 §6]

Notes of Decisions

In General

Where the ap­peal is from a judg­ment in a crim­i­nal writ of review pro­ceed­ing in the circuit court resulting in a judg­ment of con­vic­­tion, the proper avenue of ap­peal is to the Court of Appeals. Doran v. State, 270 Or 758, 529 P2d 928 (1974)

Trial court lacked authority to stay period of proba­tion pending outcome of ap­peal. State ex rel Dillavou v. Foster, 273 Or 319, 541 P2d 811 (1975); State v. Popp, 118 Or App 508, 848 P2d 134 (1993)

Appeal from suspended sen­tence is governed by this sec­tion, and thus appellate review was precluded where defendant, who had pleaded guilty and received suspended sen­tence, failed to file his ap­peal pursuant to ORS 138.050 (Appeal from sentence on plea of guilty or no contest) (alleging excessive sen­tence) within 30-day period re­quired by ORS 138.071 (Time within which appeal must be taken). State v. Martinez, 35 Or App 381, 581 P2d 955 (1978), Sup Ct review denied

Imposi­tion of 10 p.m. curfew as condi­tion of proba­tion on 20-year-old woman was not excessive and was reasonably related to effective proba­tion. State v. Sprague, 52 Or App 1063, 629 P2d 1326 (1981), Sup Ct review denied

Where defendant was convicted in stipulated facts trial rather than after plea of guilty or no contest, ORS 138.050 (Appeal from sentence on plea of guilty or no contest) was inapplicable and sen­tence was reviewable on direct ap­peal under this sec­tion and ORS 138.053 (Judgments and orders that are subject to appeal). Schantz v. Maass, 114 Or App 167, 834 P2d 508 (1992)

Criminal defendant does not waive objec­tion to admission of evidence by presenting testimony or other evidence to rebut evidence to which defendant objected. State v. McGinnis, 335 Or 243, 64 P3d 1123 (2003)

Where state ap­peals under ORS 138.060 (Appeal by state) and defendant cross-ap­peals, appellate court ordinarily will exercise discre­tion to review cross-ap­peal only if assign­ment of error in cross-ap­peal is inextricably linked to state assign­ment of error on ap­peal. State v. Shaw, 338 Or 586, 113 P3d 898 (2005)

When Appeal Lies

Appellate court hearing of an ap­peal by defendant made after verdict but before sen­tence is inappropriate because the defendant can ap­peal only from a "judg­ment" or "judge on a con­vic­­tion." State v. McFarland, 10 Or App 90, 497 P2d 1283 (1972), Sup Ct review denied

Public Defender lacks standing to prosecute ap­peal of con­vic­­tion for driving under influence of intoxicants obtained in absentia and without defendant's authoriza­tion. State v. Lyon, 36 Or App 255, 584 P2d 345 (1978)

Proba­tion condi­tion alleged by defendant to be unreasonable was reviewable under this sec­tion. State v. Fisher, 32 Or App 465, 574 P2d 354 (1978), Sup Ct review denied

Proba­tion order is judg­ment on con­vic­­tion for purposes of ORS 138.050 (Appeal from sentence on plea of guilty or no contest), and is thus ap­pealable. State v. Martin, 282 Or 583, 580 P2d 536 (1978)

Court of Appeals has no jurisdic­tion over ap­peal from circuit court affirmance of municipal court con­vic­­tions, where constitu­tionality of ordinance or charter pro­vi­sion is not at issue. City of Klamath Falls v. Winters, 289 Or 757, 619 P2d 217 (1980)

Since orders denying transcripts are not intermediate orders under this sec­tion and since this sec­tion does not provide for review of sub­se­quent orders of trial courts, ap­peals of these matters cannot be taken pursuant to this sec­tion, but rather must be brought under ORS 19.010 (renumbered ORS 19.205 (Appealable judgments and orders)). State v. Montgomery, 58 Or App 630, 650 P2d 111 (1982), as modified by 294 Or 417, 657 P2d 668 (1983); State v. Sullens, 314 Or 436, 839 P2d 708 (1992)

ORS 138.071 (Time within which appeal must be taken) (4) does not allow delayed ap­peal from juvenile court disposi­tion order placing juvenile under jurisdic­tion of juvenile court, because such order is not "judg­ment of con­vic­­tion." State ex rel Juv. Dept. v. Hardy, 93 Or App 584, 763 P2d 406 (1988), Sup Ct review denied

Order of proba­tion is ap­pealable as judg­ment on con­vic­­tion, and ap­peal or review is not limited to whether it exceeds max­i­mum allowable by law or is unconstitu­tionally cruel and unusual as in case of ap­peal of sen­tence. State v. Carmickle, 307 Or 1, 764 P2d 290 (1988)

Under this sec­tion and ORS 138.050 (Appeal from sentence on plea of guilty or no contest) crim­i­nal defendant may ap­peal from order which revokes his proba­tion and reinstates his pre­vi­ously suspended sen­tence. State v. Altman, 97 Or App 462, 777 P2d 969 (1989)

Where defendant's proba­tion was continued and no sen­tence was imposed this sec­tion, not ORS 138.050 (Appeal from sentence on plea of guilty or no contest), controlled scope of review and court erred in continuing defendants' proba­tion over defendant's request that he be sen­tenced. State v. Benway, 97 Or App 685, 776 P2d 880 (1989)

Where defendant challenged indict­ment on ground that corrected indict­ment was returned, challenge is not moot because indict­ment is valid and may be basis of pros­e­cu­­tion notwithstanding existence of separate indict­ment. State v. Dunn, 99 Or App 519, 783 P2d 29 (1989), Sup Ct review denied

Order imposing condi­tion of proba­tion after plea of no contest is reviewable under this sec­tion. State v. Donovan, 307 Or 461, 770 P2d 581 (1989); State v. Crocker, 96 Or App 111, 771 P2d 1026 (1989)

Where final docu­ment in crim­i­nal case, whether denominated "judg­ment" or something else, states on its face that trial court intends to impose restitu­tion at future date, that docu­ment is not "judg­ment" from which ap­peal may be taken under this sec­tion because it does not yet contain complete sen­tence. State v. Bonner, 307 Or 598, 771 P2d 272 (1989)

Order denying mo­tion for new trial based on newly discovered evidence or juror miscon­duct is reviewable on ap­peal under this statute. State v. Sullens, 314 Or 436, 839 P2d 708 (1992)

Where ap­peal may be taken as matter of statutory right, appellate court retains discre­tion to dismiss ap­peal of fugitive from justice. State v. Sterner, 124 Or App 439, 862 P2d 1321 (1993), Sup Ct review denied

Law Review Cita­tions

51 OLR 367, 652 (1972)

1 Legislative Counsel Committee, CHAPTER 138—Appeals; Post-Conviction Relief, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors138.­pdf (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­138ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
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