(1)(a) A justice, municipal or circuit court may enter an order in a criminal action as defined in ORS § 131.005 staying execution of a sentence, or a portion of a sentence, pending the resolution of an appeal.

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Terms Used In Oregon Statutes 138.285

  • Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.
  • Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
  • Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
  • Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
  • Conviction: A judgement of guilt against a criminal defendant.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
  • Prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.

(b) Except for good cause shown, a motion for an order under this section must be filed in the trial court no later than the filing of a notice of appeal. The trial court retains jurisdiction to enter an order under this section irrespective of whether a notice of appeal has been filed.

(c) Except as otherwise required by this section, the trial court may impose conditions on a stay that the trial court determines are appropriate.

(2) In determining whether to enter an order staying the execution of all of a sentence, or a portion of a sentence, the trial court shall consider the following factors:

(a) The nature of the offense;

(b) The severity of the sentence imposed;

(c) The health of the defendant;

(d) The character and strength of the evidence;

(e) The criminal history of the defendant;

(f) If the sentence, or the portion of the sentence, sought to be stayed includes a term of incarceration, the likelihood that the defendant will:

(A) Appear in court at all appropriate times;

(B) Comply with any other conditions of release; and

(C) Complete, or substantially complete, serving the term of incarceration before the appeal is decided;

(g) The likelihood that an appellate court will reverse the sentence, or the portion of the sentence, sought to be stayed or will reverse the judgment of conviction that includes the sentence, or the portion of the sentence, sought to be stayed; and

(h) If an appellate court has issued a decision reversing the sentence, or a portion of the sentence, sought to be stayed or reversing the judgment of conviction that includes the sentence, or the portion of the sentence, sought to be stayed:

(A) Whether the reversal or any other relief described in the appellate decision will result in the defendant having completed serving the term of incarceration imposed; and

(B) Whether the appellate decision remands the case for a new trial.

(3) If the trial court enters an order staying a term of incarceration, the court:

(a) May order that the conditions of the release agreement and any posted security stand pending resolution of the appeal or may order an increase or reduction in the amount of security.

(b) Shall order that the defendant, as a condition of release:

(A) Duly prosecute the appeal of the defendant as required by ORS § 138.005 to 138.500;

(B) Appear at such time and place as the court may direct;

(C) Not depart this state without leave of the court; and

(D) If the judgment is affirmed, or the judgment is reversed and the case is remanded for a new trial, immediately appear as required by the trial court.

(4) If the court enters an order staying the payment of a monetary obligation, the court may order the defendant:

(a) To deposit, pending resolution of the appeal, the whole or any part of the monetary obligation with the clerk of the trial court;

(b) To file an undertaking with sufficient sureties;

(c) To submit to an examination of assets; or

(d) To refrain from dissipating the assets of the defendant. [Formerly 138.125]

 

138.285 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS Chapter 138 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

[Amended by 1981 c.178 § 9; repealed by 1985 c.734 § 20]

 

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