Bill Text: OR SB44 | 2013 | Regular Session | Enrolled
Bill Title: Relating to appeals; and declaring an emergency.
Spectrum: Committee Bill
Status: (Passed) 2013-05-24 - Effective date, May 16, 2013. [SB44 Detail]
Download: Oregon-2013-SB44-Enrolled.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
Enrolled
Senate Bill 44
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
CHAPTER ................
AN ACT
Relating to appeals; creating new provisions; amending ORS
138.071 and 138.083; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 138.083 is amended to read:
138.083. (1)(a) The sentencing court { - shall retain - }
{ + retains + } authority irrespective of any notice of appeal
after entry of judgment of conviction to modify its judgment and
sentence to correct any arithmetic or clerical errors or to
delete or modify any erroneous term in the judgment. The court
may correct the judgment either on the motion of one of the
parties or on the court's own motion after written notice to all
the parties.
(b) If a sentencing court enters a corrected judgment under
this subsection while an appeal of the judgment is pending, the
{ + sentencing + } court shall immediately forward a copy of
the corrected judgment to the appellate court. { + The appellate
court shall notify the parties to the appeal when the appellate
court receives the corrected judgment. Except as provided in
subsection (3) of this section, + } any modification of the
appeal necessitated by the corrected judgment shall be made in
the manner specified by rules adopted by the appellate court.
(2)(a) A judgment that orders payment of restitution but does
not specify the amount of restitution imposed is final for the
purpose of appealing the judgment.
(b) Notwithstanding the filing of a notice of appeal, the
sentencing court retains authority to determine the amount of
restitution and to enter a supplemental judgment to specify the
amount and terms of restitution.
(c) If a sentencing court enters a supplemental judgment under
this subsection while an appeal of the judgment of conviction is
pending, the { + sentencing + } court shall immediately forward
a copy of the supplemental judgment to the appellate court.
{ + The appellate court shall notify the parties to the appeal
when the appellate court receives the supplemental judgment.
Except as provided in subsection (3) of this section, + }any
modification of the appeal necessitated by the supplemental
judgment may be made in the manner specified by rules adopted by
the appellate court.
Enrolled Senate Bill 44 (SB 44-A) Page 1
{ + (3)(a) If the appellant intends to assign error to any
part of the corrected or supplemental judgment, the appellant
must file an amended notice of appeal from the corrected or
supplemental judgment.
(b) If the appellant does not intend to assign error to any
part of the corrected or supplemental judgment, the appellant
need only file a notice of intent to proceed with the appeal.
Such notice is not jurisdictional.
(4) As used in this section, 'appellant' means the attorney of
record in the appellate court for the appellant or, if the
appellant is not represented by an attorney, the appellant
personally. + }
SECTION 2. ORS 138.071 is amended to read:
138.071. (1) Except as provided in this section, a notice of
appeal must be served and filed not later than 30 days after the
judgment or order appealed from was entered in the register.
(2) If a motion for new trial or motion in arrest of judgment
is served and filed, a notice of appeal must be served and filed
within 30 days from the earlier of the following dates:
(a) The date of entry of the order disposing of the motion; or
(b) The date on which the motion is deemed denied.
(3) A defendant cross-appealing must serve and file the notice
of cross-appeal within 10 days of the expiration of the time
allowed in subsection (1) of this section.
{ - (4) If the trial court enters a corrected or a
supplemental judgment under ORS 138.083, a notice of appeal from
the corrected or supplemental judgment must be filed not later
than 30 days after the defendant receives notice that the
judgment has been entered. - }
{ + (4) If the trial court enters a corrected or supplemental
judgment under ORS 138.083 or under any other statutory provision
while an appeal of the judgment of conviction is pending and:
(a) A party intends to assign error to any part of the
corrected or supplemental judgment, the party must file an
amended notice of appeal from the corrected or supplemental
judgment not later than 30 days after the party receives notice
that the corrected or supplemental judgment has been entered.
(b) A party does not intend to assign error to any part of the
corrected or supplemental judgment, the party need only file a
notice of intent to proceed with the appeal not later than 30
days after the party receives notice that the corrected or
supplemental judgment has been entered. + }
(5)(a) Upon motion of a defendant, the Court of Appeals shall
grant the defendant leave to file a notice of appeal after the
time limits described in subsections (1) to (4) of this section
if:
(A) The defendant, by clear and convincing evidence, shows that
the failure to file a timely notice of appeal is not attributable
to the defendant personally; and
(B) The defendant shows a colorable claim of error in the
proceeding from which the appeal is taken.
(b) A defendant is not entitled to relief under this subsection
for failure to file timely notice of cross-appeal when the state
appeals pursuant to ORS 138.060 (1)(c) or (2)(a).
(c) The request for leave to file a notice of appeal after the
time limits prescribed in subsections (1) to (3) of this section
must be filed no later than 90 days after entry of the order or
judgment being appealed. The request for leave to file a notice
of appeal after the time limit prescribed in subsection (4) of
this section must be filed no later than 90 days after the
Enrolled Senate Bill 44 (SB 44-A) Page 2
{ - defendant receives - } { + party receives + } notice that
the judgment has been entered. A request for leave under this
subsection must be accompanied by the notice of appeal, may be
filed by mail and is deemed filed on the date of mailing if the
request is mailed as provided in ORS 19.260.
(d) The court may not grant relief under this subsection unless
the state has notice and opportunity to respond to the
defendant's request for relief.
(e) The denial of a motion under paragraph (a) of this
subsection is a bar to post-conviction relief under ORS 138.510
to 138.680 on the same ground, unless the court provides
otherwise.
{ + (6) As used in this section, 'party' means the attorney
of record in the appellate court for the party or, if the party
is not represented by an attorney, the party personally. + }
SECTION 3. { + The amendments to ORS 138.071 and 138.083 by
sections 1 and 2 of this 2013 Act apply to corrected and
supplemental judgments entered on or after the effective date of
this 2013 Act. + }
SECTION 4. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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Passed by Senate March 7, 2013
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House May 6, 2013
.............................................................
Tina Kotek, Speaker of House
Enrolled Senate Bill 44 (SB 44-A) Page 3
Received by Governor:
......M.,............., 2013
Approved:
......M.,............., 2013
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2013
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 44 (SB 44-A) Page 4
