(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 nonpunitive 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. [2015 c.320 §1; 2017 c.442 §16; 2021 c.486 §2]
Note: 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.
Structure 2021 Oregon Revised Statutes
Volume : 04 - Criminal Procedure, Crimes
Chapter 137 - Judgment and Execution; Parole and Probation by the Court
Section 137.010 - Duty of court to ascertain and impose punishment.
Section 137.020 - Time for pronouncing judgment; delay; notice of right to appeal.
Section 137.030 - Presence of defendant at pronouncement of judgment.
Section 137.040 - Bringing defendant in custody to pronouncement of judgment.
Section 137.060 - Form of bench warrant.
Section 137.071 - Requirements for judgment documents.
Section 137.074 - Fingerprints of convicted felons and certain misdemeanants required.
Section 137.077 - Presentence report; general principles of disclosure.
Section 137.080 - Consideration of circumstances in aggravation or mitigation of punishment.
Section 137.085 - Age and physical disability of victim as factors in sentencing.
Section 137.090 - Considerations in determining aggravation or mitigation.
Section 137.101 - Compensatory fine.
Section 137.103 - Definitions for ORS 137.101 to 137.109.
Section 137.105 - Authority of trial court during pendency of appeal.
Section 137.106 - Restitution to victims; objections by defendant; disclosure to defendant.
Section 137.107 - Authority of court to amend part of judgment relating to restitution.
Section 137.108 - Restitution when defendant has entered into diversion agreement.
Section 137.120 - Term of sentence; reasons to be stated on record.
Section 137.121 - Maximum consecutive sentences.
Section 137.123 - Provisions relating to concurrent and consecutive sentences.
Section 137.126 - Definitions for ORS 137.126 to 137.131.
Section 137.129 - Length of community service sentence.
Section 137.131 - Community service as condition of probation for offense involving graffiti.
Section 137.138 - Forfeiture of weapons and revocation of hunting license for certain convictions.
Section 137.143 - All monetary obligations constitute single obligation on part of convicted person.
Section 137.145 - Definitions for ORS 137.145 to 137.159.
Section 137.153 - Level II obligations in circuit court judgments.
Section 137.154 - Level II obligations in local court judgments.
Section 137.172 - Entry of corrected judgment.
Section 137.183 - Interest on judgments; waiver; payments.
Section 137.210 - Taxation of costs against complainant.
Section 137.218 - Joint petition for reconsideration of conviction or sentence.
Section 137.221 - Vacation of judgment of conviction for prostitution.
Section 137.226 - Eligibility for order setting aside certain marijuana convictions.
Section 137.228 - Finding that defendant is alcoholic or drug-dependent person; effect.
Section 137.229 - Duty of Department of Corrections.
Section 137.281 - Withdrawal of rights during term of incarceration; restoration of rights.
Section 137.286 - Minimum fines for misdemeanors and felonies; retention of jurisdiction.
Section 137.300 - Criminal Fine Account; rules.
Section 137.301 - Legislative findings.
Section 137.310 - Authorizing execution of judgment; detention of defendant.
Section 137.330 - Where judgment of imprisonment in county jail is executed.
Section 137.333 - Exception to ORS 137.330.
Section 137.463 - Death warrant hearing; death warrant.
Section 137.464 - Administrative assessment of defendant’s mental capacity.
Section 137.466 - Judicial determination of defendant’s mental capacity.
Section 137.473 - Means of inflicting death; place and procedures; acquisition of lethal substance.
Section 137.478 - Return of death warrant after execution of sentence of death.
Section 137.482 - Service of documents on defendant.
Section 137.523 - Custody of person sentenced to confinement as condition of probation.
Section 137.530 - Investigation and report of parole and probation officers; statement of victim.
Section 137.542 - Probation conditions related to medical use of cannabis.
Section 137.547 - Consolidation of probation violation proceedings; rules.
Section 137.551 - Revocation of probationary sentences; release dates; rules.
Section 137.553 - Use of citations for probation violations authorized.
Section 137.557 - Citation; procedure; contents.
Section 137.570 - Authority to transfer probationer from one agency to another; procedure.
Section 137.592 - Policy regarding probation violations.
Section 137.595 - Establishing system of sanctions; rules.
Section 137.596 - Probation violations; custodial sanctions; rules.
Section 137.597 - Probationer may consent to imposition of sanctions.
Section 137.599 - Hearing prior to, or after, imposition of sanctions.
Section 137.620 - Powers of parole and probation officers; oath of office; bond; audit of accounts.
Section 137.630 - Duties of parole and probation officers.
Section 137.633 - Earned reduction of supervision period; rules.
Section 137.635 - Determinate sentences required for certain felony convictions.
Section 137.637 - Determining length of determinate sentences.
Section 137.651 - Definitions for ORS 137.654, 137.656 and 137.658.
Section 137.654 - Oregon Criminal Justice Commission; membership; terms; meetings.
Section 137.656 - Purpose and duties of commission; rules.
Section 137.661 - Agency cooperation with commission.
Section 137.662 - Oregon Criminal Justice Commission Account.
Section 137.667 - Amendments to sentencing guidelines; submitting to Legislative Assembly; rules.
Section 137.669 - Guidelines control sentences; mandatory sentences.
Section 137.671 - Authority of court to impose sentence outside guidelines.
Section 137.672 - Aggravating factor sentencing rules relating to gender identity of victim.
Section 137.673 - Validity of rules.
Section 137.674 - Use of force data analysis; report to legislature.
Section 137.678 - Analysis of bias-related crime and incident data; annual report; rules.
Section 137.679 - Restorative justice grant program; rules.
Section 137.680 - Development of specialty court standards.
Section 137.681 - Innovative Grant Program; rules.
Section 137.682 - Innovative Grant Fund.
Section 137.683 - Racial and ethnic impact statements for proposed legislation; rules.
Section 137.685 - Racial and ethnic impact statements for state measures; hearing.
Section 137.689 - Oregon Crimefighting Act.
Section 137.690 - Major felony sex crime.
Section 137.700 - Offenses requiring imposition of mandatory minimum sentences.
Section 137.705 - Definitions; adult prosecution of certain juvenile offenders.
Section 137.709 - Application of ORS 137.700 and 137.707.
Section 137.712 - Exceptions to ORS 137.700 and 137.707.
Section 137.717 - Presumptive sentences for certain property offenders.
Section 137.719 - Presumptive life sentence for certain sex offenders upon third conviction.
Section 137.725 - Presumptive life sentence for certain sex offenders upon second conviction.
Section 137.752 - Requirements when defendant committed to custody of county.
Section 137.754 - Authority of court to modify judgment to comply with ORS 137.750 and 137.752.
Section 137.767 - Presentence investigation and examination.
Section 137.769 - Defendant’s right to independent examination.
Section 137.771 - Resentencing hearing; petition; findings; modification of sentence.
Section 137.924 - Supervisory authority to provide information to agency directors.
Section 137.930 - Criminal history data provider requirements.