Bill Text: OR SB44 | 2013 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 223

                         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)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Directs appellate court to notify parties to appeal when
appellate court receives corrected or supplemental judgment from
trial court. Provides that party may appeal from corrected or
supplemental judgment within 30 days from date appellate court
provides notice to parties.
  Declares emergency, effective on passage.

                        A BILL FOR 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 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.  + }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.
 + }Any modification of the appeal necessitated by the
supplemental judgment may be made in the manner specified by
rules adopted by the appellate court.
  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 - }   { + date the appellate
court provides + } notice  { + to the parties under ORS 138.083
 + }that the judgment has been
  { - entered - }  { +  received by the appellate court + }.
  (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
  { - defendant receives - }   { + date the appellate court
provides + } notice  { + to the parties under ORS 138.083 + }
that the judgment has been   { - entered - }  { +  received by
the appellate court + }. 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.
  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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