2007 ORS 138.500¹
Appointment of counsel and furnishing of transcript for appellant without funds
  • compensation

(1) If a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) wishes to appeal from an appealable adverse final order or judgment of a circuit court and if the person is without funds to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case for the appeal, the person may request the circuit court from which the appeal is or would be taken to appoint counsel to represent the person on appeal. The following apply to a request under this subsection:

(a) The request shall be in writing and shall be made within the time during which an appeal may be taken or, if the notice of appeal has been filed, at any time thereafter. The request shall include a brief statement of the assets, liabilities and income in the previous year of the person unless the court already determined the person to be financially eligible for appointed counsel at state expense for purposes of the specific case, in which instance, the written request need only so indicate. However, if a request relies on a court’s previous determination that the person is financially eligible, the court, in its discretion, may require the person to submit a new statement of assets, liabilities and income.

(b) If, based upon a request under paragraph (a) of this subsection, the court finds that petitioner or defendant previously received the services of appointed counsel or currently is without funds to employ suitable counsel for an appeal, the court shall appoint counsel to represent petitioner or defendant on the appeal.

(2)(a) Notwithstanding subsection (1) of this section, when a defendant has been sentenced to death, the request for appointed counsel shall be made to the Supreme Court. The Supreme Court shall appoint suitable counsel to represent the defendant on the appeal.

(b) After the notice of appeal has been filed, the Court of Appeals has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under ORS 138.504 (Waiver of counsel).

(c) The Supreme Court has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under ORS 138.504 (Waiver of counsel) in connection with review of a Court of Appeals decision under ORS 2.520 (Procedure for review of decisions of Court of Appeals).

(d) Neither the Court of Appeals nor the Supreme Court may substitute one appointed counsel for another under paragraph (b) or (c) of this subsection except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission.

(3) Whenever a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) has filed a notice of appeal from an appealable adverse final order or judgment of a circuit court and the person is without funds to pay for a transcript, or portion thereof, necessary to present adequately the case upon appeal, the person may request the public defense services executive director to have the transcript, or portion thereof, prepared for purposes of appeal. The following apply to a request under this subsection:

(a) The public defense services executive director shall authorize the preparation of a transcript after a court has determined that the person is eligible for court-appointed counsel or, if the person has not applied for court-appointed counsel, the person submits a statement of the person’s assets, liabilities and income in the previous year and the director determines that the person is eligible for preparation of a transcript at state expense.

(b) The cost of the transcript preparation under paragraph (a) of this subsection shall be in the amount prescribed in ORS 21.470 (Transcript fees) and paid for as provided by the policies, procedures, standards and guidelines of the Public Defense Services Commission.

(4) After submission of the original brief by counsel, the public defense services executive director shall determine the cost of briefs and any other expenses of appellant, except transcripts, necessary to appellate review and a reasonable amount of compensation for counsel appointed under this section. Compensation payable to appointed counsel shall be as established under ORS 151.216 (Duties). On any review by the Supreme Court of the judgment of the Court of Appeals the public defense services executive director shall similarly determine the costs of briefs and any other expenses necessary for review and a reasonable amount of compensation for counsel appointed under this section.

(5) Costs, expenses and compensation determined by the public defense services executive director under subsection (4) of this section shall be paid by the public defense services executive director from funds available for that purpose.

(6) If the public defense services executive director denies, in whole or in part, costs, expenses and compensation submitted for review and payment, the person who submitted the payment request may appeal the decision to the Chief Judge of the Court of Appeals, if the appeal is in the Court of Appeals, or to the Chief Justice of the Supreme Court, if the appeal is in the Supreme Court. The Chief Judge, Chief Justice or the designee of the Chief Judge or Chief Justice, as appropriate, shall review the public defense services executive director’s decision for abuse of discretion. The decision of the Chief Judge, the Chief Justice or the designee of the Chief Judge or Chief Justice is final.

(7) The provisions of this section shall apply in favor of the defendant in a criminal action or the petitioner in a proceeding pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) when the person is respondent in an appeal taken by the state in a criminal action or by the defendant in a proceeding pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title).

(8) As used in this section, "criminal action" does not include an action that involves only violations.

(9) As used in subsection (4) of this section, "counsel" includes a legal advisor appointed under ORS 138.504 (Waiver of counsel). [1959 c.636 §23; 1961 c.480 §2; 1963 c.600 §8; 1969 c.198 §71; 1971 c.257 §3; 1977 c.752 §6; 1979 c.867 §3; 1981 s.s. c.3 §126; 1983 c.763 §16; 1983 c.774 §5; 1985 c.58 §1; 1985 c.502 §20; 1989 c.1053 §6; 1991 c.790 §17; 1991 c.827 §1; 1995 c.117 §2; 1995 c.194 §1; 2001 c.962 §§29,108; 2003 c.449 §§7,44; 2005 c.454 §1; 2007 c.291 §1]

Notes of Decisions

Indigency is a ques­tion of fact, reviewable only to determine whether there was an abuse of discre­tion. State v. Hari, 16 Or App 357, 518 P2d 1054 (1974), Sup Ct review denied

This sec­tion does not give Supreme Court authority to award attorney fees on ap­peal in habeas corpus cases to counsel appointed by circuit courts. Penrod/Brown v. Cupp, 284 Or 417, 587 P2d 96 (1978)

This sec­tion and ORS 151.280, authorizing Public Defender Committee to determine when Public Defender is unable to serve as appointed appellate counsel, do not unconstitu­tionally encroach upon power of judiciary to regulate practice of law. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)

Under this sec­tion, requiring that court furnish indigent defendant such por­tions of transcript as are "necessary" and "ma­te­ri­al to the decision on ap­peal," it was proper for trial court to require affidavit informing court of defendant's conten­tions on ap­peal. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)

This sec­tion does not violate indigent defendant's constitu­tional right to transcript on ap­peal. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)

Where trial court denied request for transcript under this sec­tion and defendant wanted to renew the request, defendant should have filed mo­tion before Court of Appeals to order transcript under ORAP 6.15. State v. Montgomery, 294 Or 417, 657 P2d 668 (1983)

When mo­tion is made for transcript to be provided at public expense: (1) appellate counsel's affidavit in support of mo­tion must reflect contact with trial counsel and, in reasonable detail, trial counsel's efforts to assist, including recollec­tions of specific trial court rulings on objec­tions, jury instruc­tions given or requested and pretrial mo­tions or rulings; (2) if mo­tion for judg­ment of acquittal was made, and denial of mo­tion is to be claimed error, transcript must be provided for entire evidentiary por­tion of trial; (3) if ap­peal includes challenge to sen­tence imposed, full transcript of evidentiary por­tions of trial must be provided, as well as testimony presented on pretrial mo­tions; and (4) appellate counsel is, in absence of any evidence to the contrary, entitled to presump­tion that representa­tions of reasons for needing transcript are made honestly and in good faith. State v. Bonner, 66 Or App 1, 672 P2d 1333 (1983)

Where public defender services corpora­tion was under contract to provide trial court services but would not be contractually compensated for appellate representa­tion, this sec­tion did not exclude compensa­tion as court-appointed counsel on ap­peal. State v. Garcias, 298 Or 152, 690 P2d 497 (1984)

In crim­i­nal case with appointed counsel on ap­peal, (1) Court of Appeals shall set attorney fees based on determina­tion of reasonableness of fee requested; (2) if Court of Appeals reduces amount of fee claimed, court shall provide counsel with brief explana­tion for reduc­tion; (3) reduc­tion by Court of Appeals, counsel may peti­tion for reconsidera­tion and submit addi­tional docu­menta­tion and explana­tion to court; (4) Court of Appeals shall set final amount of compensa­tion without further explana­tion; (5) to extent assess­ment of lawyer's work is factual, Court of Appeals' factual decision is final. State v. Longjaw, 307 Or 47, 761 P2d 1331 (1988)

Under this sec­tion, Court of Appeals had discre­tion to grant extension of time in which to peti­tion for court-appointed attorney fees, and where counsel had docu­mented and unanticipated medical condi­tion which substantially interfered with ability to file peti­tion for fees in timely manner, extraordinary circumstances warranting further time were presented. State v. Vanderburg, 98 Or App 428, 781 P2d 1216 (1989)

Form advising that court appointed attorney spent too much time researching and writing brief and preparing for and attending oral argu­ment sufficiently explained why Court of Appeals reduced attorney fees. State v. Robinson, 313 Or 565, 835 P2d 908 (1992)

Finding that counsel asserted frivolous argu­ment in bad faith or for improper purpose is not re­quired to find fees unreasonable. Lee v. Maass, 118 Or App 401, 847 P2d 890 (1993)

This sec­tion does not authorize compensa­tion to court-appointed counsel for expending unnecessary time preparing frivolous argu­ment. Lee v. Maass, 118 Or App 401, 847 P2d 890 (1993)

Where appellate judg­ment had already issued, error by counsel in calculating time for requesting court-appointed attorney compensa­tion was not extraordinary circumstance excusing late filing. State ex rel Juv. Dept. v. Blomquist, 126 Or App 637, 870 P2d 238 (1994)

In determining whether to grant relief from default after late filing of request for court-appointed attorney compensa­tion, court considers how late request is, whether judg­ment has been entered, how promptly counsel sought to cure problem and reasons given for delay. State ex rel Juv. Dept. v. Davis, 126 Or App 641, 870 P2d 236 (1994)

"Criminal ac­tion" has same meaning as defini­tion set forth in ORS 131.005 (General definitions). Johnson v. McGrew, 137 Or App 55, 902 P2d 1209 (1995), Sup Ct review denied

Where, after due diligence, appellate counsel is unable to designate possible conten­tion of error justifying pro­vi­sion of transcript at public expense, transcript is not re­quired for representa­tion by appellate counsel to be constitu­tionally adequate. State v. Richter, 140 Or App 1, 914 P2d 703 (1996), Sup Ct review denied

Appoint­ment of appellate counsel is not authorized where ap­peal is from limited judg­ment ordering crim­i­nal defendant to pay por­tion of appointed trial counsel costs. State v. Shank, 206 Or App 280, 136 P3d 101 (2006)


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.