ORS § 137.223

Current through legislation effective April 15, 2022
Section 137.223 - Order setting aside judgment of guilty except for insanity; fees; procedure; effect of order
(1) A person who has been found guilty except for insanity of an offense for which, if convicted, the person could apply for entry of an order setting aside the conviction pursuant to ORS 137.225, may by motion apply to the court for entry of an order setting aside the judgment finding the person guilty except for insanity of the offense.
(2)
(a) A person described in subsection (1) of this section may file the motion to set aside a judgment of guilty except for insanity any time after

the following time periods:

(A) For a judgment of guilty except for insanity on a Class B felony, seven years from the date of entry of the judgment or the date the person is no longer under the jurisdiction of the Psychiatric Security Review Board, whichever is later.
(B) For a judgment of guilty except for insanity on a Class C felony, five years from the date of entry of the judgment or the date the person is no longer under the jurisdiction of the board, whichever is later.
(C) For a judgment of guilty except for insanity on a Class A misdemeanor, three years from the date of entry of the judgment or the date the person is no longer under the jurisdiction of the board, whichever is later.
(D) For a judgment of guilty except for insanity on a Class B or Class C misdemeanor, one year from the date of entry of the judgment or the date the person is no longer under the jurisdiction of the board, whichever is later.
(b) A person is eligible to have a judgment of guilty except for insanity set aside under this section if the person has no other findings of guilty except for insanity and no convictions for offenses other than motor vehicle violations within the following time periods prior to filing the motion:
(A) For a motion concerning a judgment of guilty except for insanity on a Class B felony, seven years.
(B) For a motion concerning a judgment of guilty except for insanity on a Class C felony, five years.
(C) For a motion concerning a judgment of guilty except for insanity on a Class A misdemeanor, three years.
(D) For a motion concerning a judgment of guilty except for insanity on a Class B or Class C misdemeanor, one year.
(3)
(a) A copy of the motion shall be served upon the office of the prosecuting attorney who prosecuted the offense. The prosecuting attorney may object to the motion filed and shall notify the court and the person of the objection within 120 days of receiving the motion.
(b) When a prosecuting attorney is served with a copy of a motion to set aside a judgment of guilty except for insanity under this section, the prosecuting attorney shall provide a copy of the motion and notice of the hearing date to the victim, if any, of the offense by mailing a copy of the motion and notice to the victim's last-known address.
(c) When a person files a motion under this section, the person must pay a fee to the Department of State Police for the purpose of the department performing a criminal record check, and shall forward to the department a full set of the person's fingerprints on a fingerprint card or in any other manner specified by the department. The department shall establish a fee in an amount not to exceed the actual cost of performing the criminal record check. If the department is required to perform only one criminal record check for the person, the department may only charge one fee, regardless of the number of counties in which the person is filing a motion to set aside a conviction, arrest, charge or citation under this section. The department shall provide a copy of the results of the criminal record check to the prosecuting attorney.
(d) A person filing a motion under this section is not required to pay the filing fee established under ORS 21.135.

(4)
(a) If an objection is received to a motion filed under this section, the court shall hold a hearing, and may require the filing of such affidavits and may require the taking of such proofs as the court deems proper. The court shall allow the victim to make a statement at the hearing. If the person is otherwise eligible for relief under this section, the court shall grant the motion and enter an order as described in paragraph (b) of this subsection unless the court makes written findings, by clear and convincing evidence, that the circumstances and behavior of the person, from the date of the judgment the person is seeking to set aside to the date of the hearing on the motion, do not warrant granting the motion due to the circumstances and behavior creating a risk to public safety. When determining whether the person's circumstances and behavior create a risk to public safety, the court may only consider criminal behavior, or violations of regulatory law or administrative rule enforced by civil penalty or other administrative sanction that relate to the character of the conviction sought to be set aside. The court may not consider non-punitive civil liability, monetary obligations and motor vehicle violations.
(b) An order entered under this subsection shall state the original arrest charge and the charge for which the person was found guilty except for insanity. The order shall further state that positive identification has been established by the Department of State Police and further identified as to Department of State Police number or submitting agency number.
(5)
(a) Upon the entry of an order under subsection (4) of this section:
(A) The person, for purposes of the law, shall be deemed not to have been previously found guilty except for insanity, and the court shall issue an order sealing the records of the case, including the records of arrest, whether or not the arrest resulted in a further criminal proceeding.
(B) The court shall inform the person that the person's right to possess, purchase or otherwise acquire a firearm remains prohibited under federal law.
(b) For purposes of this subsection, records of the case do not include medical records that are in the possession of the Psychiatric Security Review Board, including medical evaluations and reports submitted from other agencies concerning the status or compliance of the person.
(6) The clerk of the court shall forward a certified copy of the order entered under subsection (5) of this section to such agencies as directed by the court. A certified copy shall be sent to the Psychiatric Security Review Board. Upon entry of the order, the judgment of guilty except for insanity shall be deemed not to have been entered, and the person may answer accordingly any questions relating to its occurrence.
(7) For purposes of any civil action in which truth is an element of a claim for relief or affirmative defense, the provisions of subsection (6) of this section providing that the judgment of guilty except for insanity be deemed not to have been entered do not apply and a party may apply to the court for an order requiring disclosure of the official records in the case as may be necessary in the interests of justice.
(8) Upon motion of any prosecutor or defendant in a case involving records sealed under this section, supported by affidavit showing good cause, the court with jurisdiction may order the reopening and disclosure of any records sealed under this section for the limited purpose of assisting the investigation of the movant. However, such an order has no other effect on the orders setting aside the judgment of guilty except for insanity.
(9) A prosecuting attorney may not condition an agreement not to object to the entry of a judgment of guilty except for insanity on an agreement by a person to waive the ability to set aside the judgment under this section.
(10) As used in this section, "affidavit includes a declaration under penalty of perjury.

ORS 137.223

Amended by 2021 Ch. 486,§ 2, eff. 1/1/2022.
Amended by 2017 Ch. 442,§ 16, eff. 6/22/2017, op. 7/1/2018.
2015 c. 320, § 1

137.223 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 137 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.