Chapter 644 Oregon Laws 2001

AN ACT

HB 2351

Relating to criminal appellate procedure; creating new provisions; and amending ORS 137.020, 138.050, 138.053 and 138.222.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 138.050 is amended to read:

138.050. (1) Except as otherwise provided in ORS 135.335, a defendant who has pleaded guilty or no contest may [only] take an appeal from a judgment or order described in ORS 138.053 [where] 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 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 [only] 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 [which] that should be imposed.

SECTION 2. ORS 138.053 is amended to read:

138.053. (1) [This section establishes the judgments and orders that are subject to the appeal provisions and to the limitations on review under ORS 138.040 and 138.050.] A judgment, or order of a court, if the order is imposed after judgment, is subject to the appeal provisions and limitations on review under ORS 138.040 and 138.050 if [this] the disposition includes any of the following:

(a) [Imposes] Imposition of a sentence on conviction.

(b) [Suspends] Suspension of imposition or execution of any part of a sentence.

(d) [Imposes or modifies] Imposition or modification of a condition of probation or of sentence suspension.

(e) [Imposes or executes] Imposition or execution of a sentence upon revocation of probation or sentence suspension.

(2) A disposition described under subsection (1) of this section is not subject to appeal after the expiration of the time specified in ORS 138.071 for appealing from the judgment or order imposing it, except as may be provided in ORS 138.510 to 138.680.

(3) Notwithstanding ORS 138.040 and 138.050, upon an appeal from a judgment or order described in subsection (1)(e) of this section, the appellate court may review the order that revoked the defendant’s probation or sentence suspension if the defendant shows a colorable claim of error in the proceeding from which the appeal is taken.

SECTION 3. ORS 138.222 is amended to read:

138.222. (1) Notwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a felony committed on or after November 1, 1989, may be reviewed only as provided by this section.

(2) Except as otherwise provided in subsection (4)(c) of this section, on appeal from a judgment of conviction entered for a felony committed on or after November 1, 1989, the appellate court shall not review:

(a) Any sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.

(b) A sentence of probation when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.

(c) A sentence of imprisonment when the rules of the Oregon Criminal Justice Commission prescribe a presumptive sentence of imprisonment but allow a sentence of probation without departure.

(d) Any sentence resulting from a stipulated sentencing agreement between the state and the defendant which the sentencing court approves on the record.

(e) Except as authorized in subsections (3) and (4) of this section, any other issue related to sentencing.

(3) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure from the sentence prescribed by the rules of the Oregon Criminal Justice Commission:

(a) Are supported by the evidence in the record; and

(b) Constitute substantial and compelling reasons for departure.

(4) In any appeal, the appellate court may review a claim that:

(a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence;

(b) The sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes; or

(5) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing. If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed an error that requires resentencing, the appellate court shall remand the entire case for resentencing. The sentencing court may impose a new sentence for any conviction in the remanded case.

(6) The appellate court shall issue a written opinion whenever the judgment of the sentencing court is reversed and may issue a written opinion in any other case when the appellate court believes that a written opinion will provide guidance to sentencing judges and others in implementing the sentencing guidelines adopted by the Oregon Criminal Justice Commission provided that the appellate courts may provide by rule for summary disposition of cases arising under this section when no substantial question is presented by the appeal.

(7) Either the state or the defendant may appeal a judgment of conviction based on the sentence for a felony committed on or after November 1, 1989, to the Court of Appeals subject to the limitations of chapter 790, Oregon Laws 1989. The defendant may appeal under this subsection only upon showing a colorable claim of error in a proceeding if the appeal is from a proceeding in which a sentence was entered subsequent to:

(a) A plea of guilty or no contest;

(b) A probation revocation or sentence suspension; or

(c) A resentencing ordered by an appellate court or a post-conviction relief court.

SECTION 4. ORS 137.020 is amended to read:

137.020. (1) After a plea or verdict of guilty, or after a verdict against the defendant on a plea of former conviction or acquittal, if the judgment is not arrested or a new trial granted, the court shall appoint a time for pronouncing judgment.

(2)(a) The time appointed shall be at least two calendar days after the plea or verdict[,] if the court intends to remain in session so long. If the court does not intend to remain in session at least two calendar days, the time appointed may be sooner than two calendar days, but shall be as remote a time as can reasonably be allowed. However, in the latter case, the judgment shall not be given less than six hours after the plea or verdict, except with the consent of the defendant.

(b) Except for good cause shown or as otherwise provided in this paragraph, a court shall not delay for more than 31 calendar days after the plea or verdict the sentencing of a defendant held in custody on account of the pending proceedings. Except for good cause shown or as otherwise provided in this paragraph, a court shall not delay for more than 56 calendar days after the plea or verdict the sentencing of a defendant not held in custody on account of the pending proceedings. If the defendant is not in custody and the court does not pronounce judgment within 56 calendar days after the plea or verdict, any period of probation imposed as a part of a subsequent judgment shall begin to run from the date of the plea or verdict.

(3) If the defendant is in custody following the verdict, the court shall pronounce judgment as soon as practicable, but in any case within seven calendar days following the verdict if no presentence investigation is ordered, and within seven calendar days after delivery of the presentence report to the court if a presentence investigation has been ordered; however, the court may delay pronouncement of judgment beyond the limits of this subsection for good cause shown.

(4) If the final calendar day a defendant must be sentenced is not a judicial day then sentencing may be delayed until the next judicial day.

(5)(a) At the time a court pronounces judgment the defendant, if present, shall be advised of the right to appeal and of the procedure for protecting [such] that right. If the defendant is not present, the court shall advise the defendant in writing of the right to appeal and of the procedure for protecting [such] that right.

(b) If the defendant is sentenced subsequent to a plea of guilty or no contest or upon probation revocation or sentence suspension, or if the defendant is resentenced after an order by an appellate court or a post-conviction relief court, the court shall advise the defendant of the limitations on appealability imposed by ORS 138.050 (1) and 138.222 (7). If the defendant is not present, the court shall advise the defendant in writing of the limitations on appealability imposed by ORS 138.050 (1) and 138.222 (7).

(6) If the defendant is eligible for representation by the Public Defender under ORS 151.250, trial counsel shall determine whether the defendant wishes to pursue an appeal. If the defendant wishes to pursue an appeal, trial counsel shall transmit to the Public Defender, on a form prepared by the Public Defender, information necessary to perfect the appeal.

SECTION 5. The amendments to ORS 138.050, 138.053 and 138.222 by sections 1, 2 and 3 of this 2001 Act apply only to appeals from judgments or orders entered in the register of a court on or after the effective date of this 2001 Act.

Approved by the Governor June 27, 2001

Filed in the office of Secretary of State June 27, 2001

Effective date January 1, 2002

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