ORS 138.105
Appeal by defendant

Text
Annotations 3

(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.

(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 (Pleading by defendant).

(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 (Offenses requiring imposition of mandatory minimum sentences) or 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court).

(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)

Intentionally left blank —Ed.

(a)

On appeal from a corrected or amended judgment that is entered before expiration of the applicable period under ORS 138.071 (Time within which appeal must be taken) (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 (Time within which appeal must be taken) (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 (Entry of corrected judgment) not to correct or amend the judgment.

(c)

As used in this subsection, “judgment” means any appealable judgment or order.

(11)

Intentionally left blank —Ed.

(a)

On a defendant’s cross-appeal under ORS 138.035 (Appeal by defendant) (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 (Appeal by defendant) (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]

Source: Section 138.105 — Appeal by defendant, https://www.oregonlegislature.gov/bills_laws/ors/ors138.html (accessed May 26, 2025).

Notes of Decisions

Where defendant pleaded no contest, court rejected defendant’s challenge to conviction because this section precludes, subject to two exceptions, appellate review of conviction resulting from plea of guilty or no contest. State v. Merrill, 311 Or App 487, 492 P3d 722 (2021), 314 Or App 460, 495 P3d 219 (2021) (former opinion adhered to as modified), Sup Ct review denied; State v. Redick, 312 Or App 260, 491 P3d 87 (2021), Sup Ct review denied

Parties’ agreement relating to only how court could decide sentencing issue if probation is revoked, but not providing specific sentence range that would apply, does not constitute “stipulated sentencing agreement” that would bar appellate review. State v. Rusen, 369 Or 677, 509 P3d 628 (2022)

Because “conviction” refers to trial court’s judicial determination of guilt reflected in judgment entered on plea, defendant who has pleaded guilty or no contest may not obtain appellate review of legal challenges to conviction in judgment entered in trial court. State v. Colgrove, 370 Or 474, 521 P3d 456 (2022)

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

ORS 138.105 Appeal by defendant

(1)

(2)

(3)

(4)

(a)

(b)

(5)

(a)

(b)

(6)

(7)

(8)

(a)

(A)

(B)

(C)

(b)

(A)

(B)

(c)

(A)

(B)

(9)

(10)

(a)

(b)

(c)

(11)

(a)

(b)

Notes of Decisions

ORS 138.105
Appeal by defendant