Chapter 288 Oregon Laws 2003

AN ACT

HB 2069

Relating to criminal procedure; creating new provisions; and amending ORS 136.535 and 138.071 and section 3, chapter 697, Oregon Laws 2001.

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

SECTION 1. ORS 136.535 is amended to read:

136.535. [(1) A motion in arrest of a judgment or a motion for a new trial, with the affidavits, if any, in support thereof shall be filed within five days after the filing of the judgment sought to be set aside, or such further time as the court may allow.]

[(2) Any counteraffidavits shall be filed by the state within five days after the filing of the motion, or such further time as the court may allow.]

[(3) The motion shall be heard and determined by the court within 20 days after the time of the entry of the judgment, and if not heard and determined within that time, the motion shall conclusively be considered denied.]

[(4) Except as otherwise provided in this section,] Except that a new trial may not be granted on application of the state, ORS 19.430 and ORCP 64 A, B and D to G [shall] apply to and regulate new trials in criminal actions[, except that a new trial shall not be granted on application of the state].

SECTION 2. ORS 138.071 is amended to read:

138.071. (1) Except as provided in subsections (2), (3) and (4) of this section, the notice of appeal shall be served and filed not later than 30 days after the judgment or order appealed from was entered in the register.

(2) If a motion for new trial or motion in arrest of judgment is served and filed the notice of appeal shall be served and filed within 30 days from the earlier of the following dates:

(a) The date of entry of the order disposing of the motion; or

(b) The date on which the motion is deemed denied[, as provided in ORS 136.535].

(3) A defendant cross-appealing shall serve and file the notice of cross-appeal within 10 days of the expiration of the time allowed in subsection (1) of this section.

(4)(a) Upon motion of a defendant, the Court of Appeals shall grant the defendant leave to file a notice of appeal after the time limits described in subsections (1) to (3) of this section if:

(A) The defendant, by clear and convincing evidence, shows that the failure to file a timely notice of appeal is not attributable to the defendant personally; and

(B) The defendant shows a colorable claim of error in the proceeding from which the appeal is taken.

(b) A defendant shall not be entitled to relief under this subsection for failure to file timely notice of cross-appeal when the state appeals pursuant to ORS 138.060 (1)(c) or (2)(a).

(c) The request for leave to file a notice of appeal after the time limits prescribed in subsections (1) to (3) of this section shall be filed no later than 90 days after entry of the order or judgment being appealed and shall be accompanied by the notice of appeal sought to be filed. A request for leave under this subsection may be filed by mail and shall be deemed filed on the date of mailing if the request is mailed as provided in ORS 19.260.

(d) The court shall not grant relief under this subsection unless the state has notice and opportunity to respond to the defendant’s request for relief.

(e) The denial of a motion under paragraph (a) of this subsection shall be a bar to post-conviction relief under ORS 138.510 to 138.680 on the same ground, unless the court provides otherwise.

SECTION 3. Section 3, chapter 697, Oregon Laws 2001, is amended to read:

Sec. 3. (1) If DNA (deoxyribonucleic acid) testing ordered under section 2, chapter 697, Oregon Laws 2001, [of this 2001 Act] produces inconclusive evidence or evidence that is unfavorable to the person requesting the testing:

(a) The court shall forward the results to the State Board of Parole and Post-Prison Supervision; and

(b) The Department of State Police shall compare the evidence to DNA evidence from unsolved crimes in the Combined DNA Index System.

(2) If DNA testing ordered under section 2, chapter 697, Oregon Laws 2001, [of this 2001 Act] produces exculpatory evidence, the person who requested the testing may file in the court that ordered the testing a motion for a new trial based on newly discovered evidence. Notwithstanding the time limit established in [ORS 136.535 (1)] ORCP 64 F, a person may file a motion under this subsection at any time during the 60-day period that begins on the date the person receives the test results.

(3) Upon receipt of a motion filed under subsection (2) of this section and notwithstanding the time limits in [ORS 136.535 (1) and (3)] ORCP 64 F, the court shall hear the motion [as provided in ORS 136.535].

SECTION 4. The amendments to ORS 136.535 and 138.071 and section 3, chapter 697, Oregon Laws 2001, by sections 1 to 3 of this 2003 Act apply to motions in arrest of judgment or motions for a new trial that are filed on or after the effective date of this 2003 Act.

Approved by the Governor June 11, 2003

Filed in the office of Secretary of State June 11, 2003

Effective date January 1, 2004

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