Oregon Statutes 138.105 – Appeal by defendant
(1) On appeal by a defendant, the appellate court has authority to review the judgment or order being appealed, subject to the provisions of this section.
Terms Used In Oregon Statutes 138.105
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- 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.
- Arrest: Taking physical custody of a person by lawful authority.
- 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.
- Juror: A person who is on the jury.
- Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(2) The appellate court has authority to review only questions of law appearing on the record.
(3) Except as otherwise provided in this section, the appellate court has authority to review any intermediate decision of the trial court.
(4) On appeal from a judgment of conviction and sentence, the appellate court has authority to review:
(a) The denial of a motion for new trial based on juror misconduct or newly discovered evidence; and
(b) The denial of a motion in arrest of judgment.
(5) The appellate court has no authority to review the validity of the defendant’s plea of guilty or no contest, or a conviction based on the defendant’s plea of guilty or no contest, except that:
(a) The appellate court has authority to review the trial court’s adverse determination of a pretrial motion reserved in a conditional plea of guilty or no contest under ORS § 135.335.
(b) The appellate court has authority to review whether the trial court erred by not merging determinations of guilt of two or more offenses, unless the entry of separate convictions results from an agreement between the state and the defendant.
(6) On appeal from a judgment ordering payment of restitution but not specifying the amount of restitution, the appellate court has no authority to review the decision to award restitution.
(7) Except as otherwise provided in subsections (8) and (9) of this section, the appellate court has authority to review any sentence to determine whether the trial court failed to comply with requirements of law in imposing or failing to impose a sentence.
(8) Except as otherwise provided in subsection (9) of this section, for a sentence imposed on conviction of a felony committed on or after November 1, 1989:
(a) The appellate court has no authority to review:
(A) A 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.
(b) If the trial court imposed a sentence that departs from the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission, the appellate court’s authority to review is limited to whether the trial 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.
(c) Notwithstanding paragraph (a) of this subsection, the appellate court has authority to review whether the sentencing court erred:
(A) 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.
(B) In imposing or failing to impose a minimum sentence prescribed by ORS § 137.700 or 137.707.
(9) The appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant.
(10)(a) On appeal from a corrected or amended judgment that is entered before expiration of the applicable period under ORS § 138.071 (1) or (2) during which the original judgment can be appealed, the appellate court has authority to review the judgment, including the corrections or amendments, as provided in this section.
(b) On appeal from a corrected or amended judgment that is entered after expiration of the applicable period under ORS § 138.071 (1) or (2) during which the original judgment was or could have been appealed, the appellate court has authority to review, as provided in this section, only the corrected or amended part of the judgment, any part of the judgment affected by the correction or amendment, or the trial court’s decision under ORS § 137.172 not to correct or amend the judgment.
(c) As used in this subsection, ‘judgment’ means any appealable judgment or order.
(11)(a) On a defendant’s cross-appeal under ORS § 138.035 (5), the appellate court may, in its discretion, limit review to any decision by the trial court that is inextricably linked, either factually or legally, to the state’s appeal.
(b) The failure to file a cross-appeal under ORS § 138.035 (5) does not waive a defendant’s right to assign error to a particular ruling of the trial court on appeal from a judgment. [2017 c.529 § 13]
[Amended by 1963 c.324 § 1; 1971 c.565 § 24; repealed by 2017 c.529 § 26]