72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 957
 
                         Senate Bill 58
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Joint Interim Committee on
  Judiciary for the Public Defense Services Commission)
 
 
                             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.
 
  Expands circumstances under which colorable claim of error
standard is used for purposes of filing notice of appeal in
criminal case.
 
                        A BILL FOR AN ACT
Relating to criminal appeals; amending ORS 138.053 and 138.222.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 138.053 is amended to read:
  138.053. (1) 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 the
disposition includes any of the following:
  (a) Imposition of a sentence on conviction.
  (b) Suspension of imposition or execution of any part of a
sentence.
  (c) Extension of a period of probation.
  (d) Imposition or modification of a condition of probation or
of sentence suspension.
  (e) 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) - }
 { +  (1)(c) to (e) + } of this section, the appellate court may
review the order that  { + extended the period of the defendant's
probation, imposed or modified a condition of the defendant's
probation or sentence suspension or + } 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 2. 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 - }  { +  may + } 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 - }  { +  is + } 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 sentence was entered subsequent to + } a plea of
guilty or no contest;
    { - (b) A probation revocation or sentence suspension; or - }
 
   { +  (b) Probation was revoked, the period of probation was
extended, a new condition of probation was imposed, an existing
condition of probation was modified or a sentence suspension was
revoked; or + }
  (c)  { + A sentence was entered subsequent to + } a
resentencing ordered by an appellate court or a post-conviction
relief court.
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