Chapter 291
AN ACT
HB 2668
Relating to appeals; amending ORS 138.310 and
138.500.
Be It Enacted by the People of
the State of
SECTION 1. ORS 138.500 is amended to read:
138.500. (1) If a
defendant in a criminal action or a petitioner in a proceeding pursuant to ORS
138.510 to 138.680 wishes to appeal from an appealable adverse final order or
judgment of a circuit court and if the person is without funds to employ
suitable counsel possessing skills and experience commensurate with the nature
and complexity of the case for the appeal, the person may request the circuit
court from which the appeal is or would be taken to appoint counsel to
represent the person on appeal. The following apply to a request under this
subsection:
(a) The request shall be
in writing and shall be made within the time during which an appeal may be
taken or, if the notice of appeal has been filed, at any time thereafter. The
request shall include a brief statement of the assets, liabilities and income in
the previous year of the person unless the court already determined the person
to be financially eligible for appointed counsel at state expense for purposes
of the specific case, in which instance, the written request need only so
indicate. However, if a request relies on a court’s previous determination that
the person is financially eligible, the court, in its discretion, may require
the person to submit a new statement of assets, liabilities and income.
(b) If, based upon a
request under paragraph (a) of this subsection, the court finds that petitioner
or defendant previously received the services of appointed counsel or currently
is without funds to employ suitable counsel for an appeal,
the court shall appoint counsel to represent petitioner or defendant on the
appeal.
(2)(a) Notwithstanding
subsection (1) of this section, when a defendant has been sentenced to death,
the request for appointed counsel shall be made to the Supreme Court. The
Supreme Court shall appoint suitable counsel to represent the defendant on the
appeal.
(b) After the notice of
appeal has been filed, the Court of Appeals has concurrent authority to appoint
or substitute counsel or appoint or substitute a legal advisor for the
defendant under ORS 138.504.
(c) The Supreme Court has
concurrent authority to appoint or substitute counsel or appoint or substitute
a legal advisor for the defendant under ORS 138.504 in connection with review
of a Court of Appeals decision under ORS 2.520.
(d) Neither the Court of
Appeals nor the Supreme Court may substitute one appointed counsel for another
under paragraph (b) or (c) of this subsection except pursuant to the policies,
procedures, standards and guidelines of the Public Defense Services Commission.
(3) Whenever a defendant
in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to
138.680 has filed a notice of appeal from an appealable adverse final order or
judgment of a circuit court and the person is without funds to pay for a
transcript, or portion thereof, necessary to present adequately the case upon
appeal, the person may request the public defense services executive director
to have the transcript, or portion thereof, [furnished to the person] prepared for purposes of appeal.
The following apply to a request under this subsection:
[(a) The request shall be in writing and, shall
include a brief statement of the assets, liabilities and income in the previous
year of the person.]
[(b) If, based upon a request under paragraph (a) of this subsection,
the public defense services executive director finds that the person is unable
to pay for the transcript, the public defense services executive director shall
have furnished to the person that portion of the transcript as may be material
to the decision on appeal, if the public defense services executive director
finds that the transcript or portion thereof is necessary.]
(a) The public
defense services executive director shall authorize the preparation of a
transcript after a court has determined that the person is eligible for
court-appointed counsel or, if the person has not applied for court-appointed
counsel, the person submits a statement of the person’s assets, liabilities and
income in the previous year and the director determines that the person is
eligible for preparation of a transcript at state expense.
[(c)] (b) The cost of the transcript
preparation under paragraph [(b)]
(a) of this subsection shall be in the amount prescribed in ORS 21.470 and
paid for as provided by the policies, procedures, standards and guidelines of
the Public Defense Services Commission.
(4) After submission of
the original brief by counsel, the public defense services executive director
shall determine the cost of briefs and any other expenses of appellant, except
transcripts, necessary to appellate review and a reasonable amount of
compensation for counsel appointed under this section. Compensation payable to
appointed counsel shall be as established under ORS 151.216. On any review by
the Supreme Court of the judgment of the Court of Appeals [a person for whom counsel has been appointed shall by similar procedure
recover the cost of briefs, any other expense of the review and compensation
for counsel.] the public defense services executive director shall
similarly determine the costs of briefs and any other expenses necessary for
review and a reasonable amount of compensation for counsel appointed under this
section.
(5) Costs, expenses and
compensation determined by the public defense services executive director under
subsection (4) of this section shall be paid by the public defense services
executive director from funds available for that purpose.
(6) If the public
defense services executive director denies, in whole or in part, costs,
expenses and compensation submitted for review and payment, the person who
submitted the payment request may appeal the decision to the Chief Judge of the
Court of Appeals, if the appeal is in the Court of Appeals, or to the Chief
Justice of the Supreme Court, if the appeal is in the Supreme Court. The Chief
Judge, Chief Justice or the designee of the Chief Judge or Chief Justice, as
appropriate, shall review the public defense services executive director’s
decision for abuse of discretion. The decision of the Chief Judge, the Chief
Justice or the designee of the Chief Judge or Chief Justice is final.
(7) The provisions of
this section shall apply in favor of the defendant in a criminal action or the
petitioner in a proceeding pursuant to ORS 138.510 to 138.680 when the person
is respondent in an appeal taken by the state in a criminal action or by the
defendant in a proceeding pursuant to ORS 138.510 to 138.680.
(8) As used in this
section, “criminal action” does not include an action that involves only
violations.
(9) As used in
subsection (4) of this section, “counsel” includes a legal advisor appointed
under ORS 138.504.
SECTION 2. ORS 138.310 is amended to read:
138.310. When the public
defense services executive director pays costs, expenses or compensation under
ORS 138.500 [(4)] (5) on appeal
in a criminal action, the public defense services executive director shall
notify the court below of the costs, expenses and compensation paid in order
that the court below may exercise its discretion under ORS 151.505 or 161.665
(2).
Approved by the Governor June 1, 2007
Filed in the office of Secretary of State June 1, 2007
Effective date January 1, 2008
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