74th OREGON LEGISLATIVE ASSEMBLY--2007 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 1008
 
                           A-Engrossed
 
                         House Bill 2133
                  Ordered by the House April 4
            Including House Amendments dated April 4
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Attorney General Hardy
  Myers for Department of Justice)
 
 
                             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.
 
  Allows for late filing of notice of appeal in post-conviction
cases when lateness is no fault of petitioner. Provides for stay
of post-conviction judgment if defendant appeals. Requires
post-conviction petitioner to serve   { - petition and - }
judgment on district attorney in county in which convicted and to
file
  { - petition and - }  judgment in circuit court in county in
which convicted.
 
                        A BILL FOR AN ACT
Relating to post-conviction proceedings; amending ORS 138.640 and
  138.650.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 138.650 is amended to read:
  138.650.  { + (1) + } Either the petitioner or the defendant
may appeal to the Court of Appeals within 30 days after the entry
of a judgment on a petition pursuant to ORS 138.510 to 138.680.
The manner of taking the appeal and the scope of review by the
Court of Appeals and the Supreme Court shall be the same as that
provided by law for appeals in criminal actions, except that:
    { - (1) - }   { + (a) + } The trial court may provide that
the transcript contain only such evidence as may be material to
the decision of the appeal; and
    { - (2) - }   { + (b) + } With respect to ORS 138.081 (1), if
petitioner appeals, petitioner shall cause the notice of appeal
to be served on the attorney for defendant, and, if defendant
appeals, defendant shall cause the notice of appeal to be served
on the attorney for petitioner or, if petitioner has no attorney
of record, on petitioner.
   { +  (2)(a) Upon motion of the petitioner, the Court of
Appeals shall grant the petitioner leave to file a notice of
appeal after the time limit described in subsection (1) of this
section if:
  (A) The petitioner, by clear and convincing evidence, shows
that the failure to file a timely notice of appeal is not
attributable to the petitioner personally; and
  (B) The petitioner shows a colorable claim of error in the
proceeding from which the appeal is taken.
  (b) The request for leave to file a notice of appeal after the
time limit described in subsection (1) of this section shall be
filed no later than 90 days after entry of the judgment from
which the petitioner seeks to appeal 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. The date of filing
shall be the date of mailing if the request is mailed as provided
in ORS 19.260.
  (c) The Court of Appeals may not grant relief under this
subsection unless the defendant has received notice of and an
opportunity to respond to the petitioner's request for relief.
  (3) An appeal under this section taken by the defendant stays
the effect of the judgment. If the petitioner is incarcerated,
the trial court may stay the petitioner's sentence pending the
defendant's appeal and order conditional release or security
release, in accordance with ORS 135.230 to 135.290, only if:
  (a) The post-conviction court's judgment vacates the judgment
of conviction or reduces the sentence or sentences imposed upon
conviction;
  (b) The petitioner has completed any other sentence of
incarceration to which the petitioner is subject; and
  (c) The petitioner otherwise would be entitled to immediate
release from incarceration under the court's judgment. + }
  SECTION 2. ORS 138.640 is amended to read:
  138.640.  { + (1) + } After deciding the issues raised in the
proceeding, the court shall enter a judgment denying the petition
or granting the appropriate relief. The judgment may include
orders as provided in ORS 138.520. The judgment must clearly
state the grounds on which the cause was determined, and whether
a state or federal question was presented and decided.
   { +  (2) If the court grants the petitioner relief, the
judgment is not enforceable in the petitioner's favor until:
  (a) The petitioner causes a certified copy of the judgment to
be entered in the circuit court in which the petitioner's
conviction and sentence were rendered; and
  (b) The petitioner serves a certified copy of the judgment on
the district attorney of the county in which the petitioner's
conviction and sentence were rendered. + }
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