2007 ORS § 138.050¹

Appeal from sentence on plea of guilty or no contest

(1) Except as otherwise provided in ORS 135.335 (Pleading by defendant), a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 (Judgments and orders that are subject to appeal) only when the defendant makes a colorable showing that the disposition:

(a) Exceeds the maximum allowable by law; or

(b) Is unconstitutionally cruel and unusual.

(2) If the judgment or order described under ORS 138.053 (Judgments and orders that are subject to appeal) is in the:

(a) Circuit court, the appeal shall be taken to the Court of Appeals.

(b) Justice court or municipal court, the appeal shall be taken to the circuit court for the county.

(3) On appeal under subsection (1) of this section, the appellate court shall consider only whether the disposition:

(a) Exceeds the maximum allowable by law; or

(b) Is unconstitutionally cruel and unusual.

(4) If the appellate court determines the disposition imposed does exceed 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 1969 c.198 §63; 1973 c.836 §275a; 1975 c.611 §23; 1977 c.372 §14; 1985 c.342 §20; 1985 c.348 §2; 1989 c.849 §5; 1995 c.658 §78; 1999 c.134 §3; 1999 c.788 §47; 2001 c.644 §1]

Notes of Decisions

This sec­tion limits the scope of direct ap­peals from a judg­ment of con­vic­­tion based upon a guilty plea to matters pertaining to the sen­tence. State v. VanValkenberg, 10 Or App 51, 498 P2d 767 (1972)

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

In order for a reviewing court to exercise its powers to review an alleged excessive sen­tence, the court must have before it some evidence as to the basis of the sen­ten­cing court's ac­tion. State v. Foltz, 14 Or App 482, 513 P2d 1208 (1973), Sup Ct review denied

Issue relating to dura­tion of sen­tence is reviewable whether or not issue was raised on direct ap­peal or in post-con­vic­­tion pro­ceed­ing. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied

An ap­peal from imposi­tion of special costs was properly considered. State v. Olson, 22 Or App 344, 539 P2d 166 (1975)

The Court of Appeal's jurisdic­tion over an ap­peal following a guilty plea is limited to matters specified in this sec­tion. State v. Waggoner, 25 Or App 403, 549 P2d 685 (1976)

Order denying withdrawal of a guilty plea is not ap­pealable. State v. Burchett, 26 Or App 637, 553 P2d 1074 (1976)

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

Interven­tion by Court of Appeals in sen­ten­cing decisions will arise only if trial court fails to comply with statutory duty to consider presen­tence report, fails to state on record reasons for sen­tence imposed, or sen­tence imposed is "clearly mis­taken" or "clear abuse of discre­tion." State v. Dinkel, 34 Or App 375, 579 P2d 245 (1978), Sup Ct review denied

There is no require­ment that trial court support sen­tence imposed by ex­plic­it reference to presen­tence report. State v. Rogers, 34 Or App 523, 579 P2d 258 (1978)

Appeal from suspended sen­tence is also governed by ORS 138.040 (Appeal by defendant generally), and thus appellate review was precluded where defendant, who had pleaded guilty and received suspended sen­tence, failed to file ap­peal made under this sec­tion within period re­quired by ORS 138.040 (Appeal by defendant generally). State v. Martinez, 35 Or App 381, 581 P2d 955 (1978), Sup Ct review denied

Record was insufficient to support court order which, as condi­tion of proba­tion, prohibited defendant from associating with ex-convicts including her husband. State v. Martin, 282 Or 583, 580 P2d 536 (1978)

Proba­tion order is ap­pealable. State v. Martin, 282 Or 583, 580 P2d 536 (1978)

Issue of whether trial court abused discre­tion by refusing to permit defendant to withdraw guilty plea cannot be raised on direct ap­peal. State v. Allen, 68 Or App 5, 680 P2d 997 (1984), Sup Ct review denied

Defendant convicted on plea of guilty or no contest has no right to direct ap­peal of any matter relating to con­vic­­tion other than sen­tence; overruling to extent of inconsistency, State v. Burnett, 228 Or 556, 365 P2d 1060 (1961), State v. Bloor, 229 Or 49, 365 P2d 103, 365 P2d 105 (1961), State v. Gidley, 231 Or 89, 371 P2d 992 (1962), State v. Cornelius, 249 Or 454, 438 P2d 1020 (1968), State v. Evans, 290 Or 707, 625 P2d 1300 (1981). State v. Clevenger, 297 Or 234, 683 P2d 1360 (1984)

Proba­tionary condi­tion that defendant no longer live in Troutdale was broader than necessary to achieve purpose of proba­tion. State v. Jacobs, 71 Or App 560, 692 P2d 1387 (1984)

Where defendant has had alcohol and controlled substance con­vic­­tions and was convicted in present case for unprovoked assault, proba­tion condi­tion that he abstain from consuming alcohol is not "cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the of­fense." State v. Douglas, 82 Or App 222, 728 P2d 548 (1986)

When defendant pleaded guilty and was sen­tenced under dangerous offender statute and trial court denied defendant opportunity to examine psychiatrist who filed written report for sen­ten­cing purposes, this sec­tion did not authorize ap­peal. State v. Loyer, 303 Or 612, 740 P2d 177 (1987)

Where court suspended sen­tence and imposed five-years proba­tion for Class A misdemeanor and after proba­tion was revoked, sen­tenced defendant to five-years im­pris­on­­ment, review allowed by this sec­tion determined max­i­mum penalty was one-year im­pris­on­­ment and sen­tence imposed exceeded sen­tence allowable by law. State of Oregon v. Seibert, 95 Or App 742, 770 P2d 613 (1989)

Por­tion of sen­tence referring defendant to institu­tion for mental health evalua­tion and treat­ment was without statutory authority and thus exceeded max­i­mum sen­tence allowable by law. State v. Johnson, 96 Or App 641, 773 P2d 812 (1989)

Where defendant pleaded guilty, order of proba­tion is ap­pealable although evidence exists that condi­tions restricting alcohol consump­tion are reasonably related to protec­tion of public or defendant's reforma­tion. State v. Dirksen, 97 Or App 272, 775 P2d 909 (1989)

Where defendant pleaded guilty and court imposed sen­tence, conten­tions that court's findings are insufficient to support imposi­tion of dangerous offender sanc­tions or consecutive sen­tences do not challenge length or constitu­tionality of sen­tences and are, therefore, outside scope of review. State v. Gehring, 97 Or App 325, 775 P2d 918 (1989), Sup Ct review denied

Under this sec­tion and ORS 138.040 (Appeal by defendant generally) 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 pleaded guilty and court imposed sen­tence, review is controlled by this sec­tion and defendant's conten­tion that court did not adequately assess his desire to proceed without counsel during proba­tion revoca­tion is beyond scope of review. State v. Humphries, 97 Or App 682, 776 P2d 1326 (1989), Sup Ct review denied

After defendant pleaded guilty, his conten­tion that he should have been allowed to cross-examine psychologist who submitted report for imposi­tion of dangerous offender sanc­tion was beyond scope of review. State v. Phillips, 99 Or App 375, 781 P2d 1272 (1989)

Appellate review of order imposing sen­tence on defendant who has pleaded guilty is limited to "the sen­tence and whether it is longer than specified for the crime or is unconstitu­tionally cruel and unusual." State v. Blaney, 101 Or App 273, 790 P2d 549 (1990)

ORS 138.222 (Scope of review of sentence imposed for felony committed on or after November 1, 1989) precludes review of sen­tence imposed under plea agree­ment and, where defendant was aware of and did not dispute sen­ten­cing classifica­tion of crime to which he pleaded guilty, classifica­tion of crime seriousness was not reviewable. State v. Stevens, 111 Or App 258, 826 P2d 12 (1992)

Where restitu­tion was ordered without following proper pro­ce­dure, restitu­tion order was reviewable as disposi­tion exceeding max­i­mum allowed by law. State v. Anderson, 113 Or App 416, 833 P2d 321 (1992)

Where defendant was convicted in stipulated facts trial rather than after plea of guilty or no contest, this sec­tion was inapplicable and sen­tence was reviewable on direct ap­peal under ORS 138.040 (Appeal by defendant generally) and 138.053 (Judgments and orders that are subject to appeal). Schantz v. Maass, 114 Or App 167, 834 P2d 508 (1992)

After defendant pleads no contest and is sen­tenced, he cannot at­tempt to circumvent statute and seek review by arguing that his con­duct amounted to different crime. State v. Woodard, 121 Or App 483, 855 P2d 1139 (1993), Sup Ct review denied

On reconsidera­tion defendant's claim of error in court's denial of mo­tion to rescind remand order and return case to juvenile court was not related to sen­ten­cing and therefore was beyond scope of review. State v. Davilla, 124 Or App 87, 860 P2d 894 (1993), Sup Ct review denied

Provision in stipulated sen­ten­cing agree­ment that reserved defendant's right to ap­peal lawfulness of sen­tence could not confer review authority. State v. Upton, 132 Or App 579, 889 P2d 376 (1995), Sup Ct review denied

Subject matter jurisdic­tion of trial court cannot be raised on ap­peal. State v. Belzons, 140 Or App 198, 915 P2d 428 (1996), Sup Ct review denied

Remand following post-con­vic­­tion relief does not permit resen­ten­cing on all con­vic­­tions. State v. Coburn, 146 Or App 653, 934 P2d 579 (1997)

Where defendant who pleaded guilty or no contest fails to make re­quired colorable showing re­gard­ing disposi­tion, proper ac­tion is for appellate court to dismiss ap­peal for lack of jurisdic­tion. State v. Stubbs, 193 Or App 595, 91 P3d 774 (2004)

To be ap­pealable under this sec­tion, "disposi­tion" must either be unconstitu­tionally cruel and unusual or exceed max­i­mum allowable by law because not imposed consistently with statutory require­ments. State v. Stubbs, 193 Or App 595, 91 P3d 774 (2004)

Appeal is not available under this sec­tion from municipal court con­vic­­tion for municipal code viola­tion. City of Lowell v. Wilson, 197 Or App 291, 105 P3d 856 (2005), Sup Ct review denied

Completed Cita­tions

State v. Wolberg, 5 Or App 295, 483 P2d 104 (1971), Sup Ct review denied, cert. denied, 404 US 1015 (1972)


1 Legislative Counsel Committee, CHAPTER 138—Appeals; Post-Conviction Relief, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­138.­html (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.