72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 2069
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary for the Oregon Criminal Defense Lawyers Association)
CHAPTER ................
AN ACT
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
Enrolled House Bill 2069 (HB 2069-INTRO) Page 1
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. + }
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Enrolled House Bill 2069 (HB 2069-INTRO) Page 2
Passed by House April 29, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 20, 2003
...........................................................
President of Senate
Enrolled House Bill 2069 (HB 2069-INTRO) Page 3
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 2069 (HB 2069-INTRO) Page 4