71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 370
 
                         House Bill 2351
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Joint Interim Judiciary
  Committee)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Limits appeals and appellate review of appeals in criminal
proceedings.
 
                        A BILL FOR AN ACT
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.
  (c)   { - Extends - }   { + Extension of  + }a period of
probation.
  (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
  (c) The sentencing court erred in failing to impose a minimum
sentence that is prescribed by ORS 137.700 or 137.707.
  (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. + }
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