ORS § 138.510

Current through 2024 Regular Session Act Chapter 22

Section 138.510 - Persons who may file petition for relief; time limit

(1) Except as otherwise provided in ORS 138.540, any person convicted of a crime under the laws of this state may file a petition for post-conviction relief pursuant to ORS 138.510 to 138.680.

(2) A petition for post-conviction relief may be filed by one person on behalf of another person who has been convicted of aggravated murder and sentenced to death only if the person filing the petition demonstrates by a preponderance of the evidence that:

(a) The person sentenced to death is unable to file a petition on the person's own behalf due to mental incapacity or because of a lack of access to the court; and

(b) The person filing the petition has a significant relationship with the person sentenced to death and will act in the best interest of the person on whose behalf the petition is being filed.

(3) A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:

(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.

(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.

(c) If a petition for certiorari to the United States Supreme Court is filed, the later of:

(A) The date of denial of certiorari, if the petition is denied; or

(B) The date of entry of a final state court judgment following remand from the United States Supreme Court.

(4) A one-year filing period shall apply retroactively to petitions filed by persons whose convictions and appeals became final before August 5, 1989, and any such petitions must be filed within one year after November 4, 1993. A person whose post-conviction petition was dismissed prior to November 4, 1993, cannot file another post-conviction petition involving the same case.

(5) The remedy created by ORS 138.510 to 138.680 is available to persons convicted before May 26, 1959.

(6) In any post-conviction proceeding pending in the courts of this state on May 26, 1959, the person seeking relief in such proceedings shall be allowed to amend the action and seek relief under ORS 138.510 to 138.680. If such person does not choose to amend the action in this manner, the law existing prior to May 26, 1959, shall govern the case.

ORS 138.510

1959 c.636 §§1,16,17; 1989 c.1053 §18; 1993 c.517 §1; 1999 c.1055 §7; 2007 c. 292, § 1

Sections 1 and 2, chapter 368, Oregon Laws 2023, provide:

Sec. 1. (1) Notwithstanding ORS 138.510 (3) and (4), at any time before December 30, 2024, a person may file a petition for post-conviction relief under ORS 138.510 to 138.680 claiming, as grounds for relief, that the person was convicted of a criminal offense as the result of a nonunanimous jury verdict.

(2) ORS 138.550 does not apply to petitions for post-conviction relief described in this section.

(3)(a) Notwithstanding ORS 138.530, in a post-conviction relief proceeding claiming, as grounds for relief, that the person was convicted of a criminal offense as the result of a nonunanimous jury verdict, the petitioner has the burden of proving, by a preponderance of the evidence, that the conviction resulted from a nonunanimous jury verdict.

(b) Evidence that a jury verdict was nonunanimous is limited to:

(A) A verdict form;

(B) A written jury poll;

(D) A transcript of the trial.

(c) Notwithstanding paragraph (b) of this subsection, if a recording or transcript of the trial reflects that the jury was polled after issuing the verdict, but either does not indicate or is ambiguous concerning whether the verdict was unanimous, the court may order a review in camera of the file of the district attorney, the defense attorney or the court, relating to the underlying conviction, and may consider any evidence concerning the jury's verdict within the file or files that the court determines to be credible.

(d) This subsection applies to petitions for post-conviction relief filed on or after the effective date of this 2023 Act [July 18, 2023].

(4) Notwithstanding ORS 138.520, if post-conviction relief is granted under this section, the court shall vacate the judgment as to the specific conviction that resulted from the nonunanimous jury verdict, or grant such other relief as stipulated by the parties.

(5) A petitioner with an appeal pending in an appellate court on the effective date of this 2023 Act, from a judgment on a petition under ORS 138.510 to 138.680, may by motion seek leave of the appellate court to vacate the judgment and remand to the circuit court so that the petitioner may file an amended petition indicating the petitioner's intent to proceed under the provisions of this section. Upon the receipt of such a motion, the appellate court may vacate the judgment and remand to the circuit court if:

(a) The petition asserted as grounds for relief either that the petitioner was convicted of a criminal offense as the result of a nonunanimous jury verdict, or that counsel was ineffective for a reason related to the petitioner's conviction resulting from a nonunanimous jury verdict; and

(b) The motion described in this subsection is filed within 90 days after the effective date of this 2023 Act.

(6) If a judgment of conviction is vacated on the grounds that the person was convicted of a criminal offense as the result of a nonunanimous jury verdict, upon retrial, if the trial court determines that evidence other than witness testimony that was previously admitted during the trial that resulted in the nonunanimous guilty verdict is unavailable because the evidence was lawfully destroyed or otherwise rendered unavailable through no fault of the state or the defendant, or that the evidence is unavailable despite reasonable efforts to preserve the evidence:

(a) The state may present in the state's case in chief or rebuttal case, and the defendant may present in the defendant's case in chief, a transcript or portion thereof, a recording of the prior proceeding or portion thereof, or any other previously admitted exhibit, concerning the unavailable evidence from the previous trial.

(b) The court shall instruct the jury:

(A) That the evidence is unavailable;

(B) That the jury may not attribute the unavailability to the state or the defendant, or fault either party for failing to produce the unavailable evidence; and

(c) The court may not instruct the jury pursuant to ORS 10.095 (7) or (8) regarding the transcripts, recordings of the prior proceeding or exhibits described in paragraph (a) of this subsection.

(7) Except as otherwise provided in this section, all provisions of ORS 138.510 to 138.680 apply to petitions for post-conviction relief described in this section.

(8) As used in this section, "conviction" includes a finding of guilty except for insanity. [2023 c. 368, § 1]

Sec. 2. (1) Section 1 of this 2023 Act is repealed on January 2, 2026.

(2) The repeal of section 1 of this 2023 Act does not affect:

(a) A petition or amended petition for post-conviction relief described in section 1 of this 2023 Act filed within the time limitations described in section 1 of this 2023 Act.

(b) A retrial resulting from the vacating of a conviction pursuant to section 1 of this 2023 Act. [2023 c. 368, § 2]