Chapter 803 Oregon Laws 2001

AN ACT

HB 2355

Relating to juvenile proceedings; creating new provisions; and amending ORS 419C.261 and 419C.610.

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

SECTION 1. ORS 419C.610 is amended to read:

419C.610. (1) Except as provided in ORS 419C.613 and sections 3 and 4 of this 2001 Act, the court may modify or set aside any order made by it upon such notice and with such hearing as the court may direct.

(2) When the court modifies or sets aside an order of jurisdiction based on a petition alleging that a youth offender has committed an act that would constitute a sex crime, as defined in ORS 181.594, if committed by an adult, the court shall make written findings stating the reason for modifying or setting aside the order.

SECTION 2. Sections 3 to 5 of this 2001 Act are added to and made a part of ORS chapter 419C.

SECTION 3. (1) In addition to any other grounds upon which a person may petition a court under ORS 419C.610, a person may petition the court on the following grounds to set aside an order finding the person to be within the jurisdiction of the court under ORS 419C.005:

(a) A substantial denial in the proceedings resulting in the person’s adjudication, or in the appellate review of the adjudication, of the person’s rights under the United States Constitution or the Oregon Constitution, or both, and the denial rendered the adjudication void; or

(b) Unconstitutionality of the statute making criminal, if the person were an adult, the acts for which the person was adjudicated.

(2) When a person petitions the court on one of the grounds listed in subsection (1) of this section:

(a) A copy of the petition shall be served on the district attorney, who shall represent the state in the matter.

(b) The court shall decide the issues raised. The court may receive proof by affidavits, depositions and other competent evidence. Oral testimony may be taken by telephone or other means approved by the court. The petitioner has the burden of proving by a preponderance of the evidence the facts alleged in the petition.

(c) The court shall set aside the order finding the petitioner to be within the jurisdiction of the court if the petitioner establishes one of the grounds set forth in subsection (1) of this section.

(3) Either the petitioner or the state may appeal from the court’s order granting or denying a petition for relief under this section. The manner of taking the appeal and the scope of review are the same as provided under ORS 419A.200.

(4) Nothing in this section may be construed to limit the original jurisdiction of the Supreme Court in habeas corpus as provided by the Oregon Constitution.

SECTION 4. (1) The effect of a prior proceeding concerning the adjudication of the person that is challenged in a petition under section 3 of this 2001 Act is as follows:

(a) The failure of the petitioner to have sought appellate review of the adjudication, or to have raised matters alleged in the petition at the prior proceeding, does not affect the availability of relief under section 3 of this 2001 Act. No proceeding under section 3 of this 2001 Act may be pursued while direct appellate review of the adjudication remains available.

(b) When the petitioner sought and obtained direct appellate review of the adjudication, no ground for relief may be asserted in a petition for relief under section 3 of this 2001 Act unless the ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. If the petitioner was not represented by counsel in the direct appellate review proceeding, due to lack of funds to retain such counsel and the failure of the court to appoint counsel for that proceeding, any ground for relief under section 3 of this 2001 Act that was not specifically decided by the appellate court may be asserted in the petition described in section 3 of this 2001 Act.

(2) The court may grant leave, at any time prior to entry of an order granting or denying relief, to withdraw the petition. The court may make appropriate orders as to the amendment of the petition or any other pleading, as to the filing of further pleadings, or as to extending the time of filing of any pleading other than the original petition.

(3) All grounds for relief claimed in a petition described in section 3 of this 2001 Act must be asserted in the original or amended petition, and any grounds not asserted are deemed waived, unless the court on hearing a subsequent petition finds grounds for relief asserted therein that could not reasonably have been raised in the original or amended petition. However, any prior petition or amended petition that was withdrawn prior to the entry of an order granting or denying relief by leave of the court, as provided in subsection (2) of this section, has no effect on the right of the petitioner to bring a subsequent petition.

SECTION 5. If a person seeking relief under section 3 of this 2001 Act is over 18 years of age and is no longer within the jurisdiction of the juvenile court, the petition must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted therein that could not reasonably have been raised in the original petition or an amended petition:

(1) If no appeal is taken, the date the juvenile court adjudication was entered in the register.

(2) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.

SECTION 6. A person described in section 5 of this 2001 Act whose adjudication or appeal became final before the effective date of this 2001 Act may file a petition seeking relief under section 3 of this 2001 Act no later than two years after the effective date of this 2001 Act.

SECTION 7. ORS 419C.261 is amended to read:

419C.261. (1) The court, on motion of an interested party or on its own motion, may at any time direct that the petition be amended. If the amendment results in a substantial departure from the facts originally alleged, the court shall grant such continuance as the interests of justice may require. When the court directs the amendment of a petition alleging that a youth has committed an act that would constitute a sex crime, as defined in ORS 181.594, if committed by an adult, the court shall make written findings stating the reason for directing the amendment.

(2) The court may set aside or dismiss a petition filed under ORS 419C.005 in furtherance of justice after considering the circumstances of the youth and the interests of the state in the adjudication of the petition. When the court sets aside or dismisses a petition alleging that a youth has committed an act that would constitute a sex crime, as defined in ORS 181.594, if committed by an adult, the court shall make written findings stating the reason for setting aside or dismissing the petition.

Approved by the Governor July 19, 2001

Filed in the office of Secretary of State July 19, 2001

Effective date January 1, 2002

__________