Dillard v. Premo

Summarized by:

  • Court: Oregon Supreme Court
  • Area(s) of Law: Post-Conviction Relief
  • Date Filed: 10-19-2017
  • Case #: S064028
  • Judge(s)/Court Below: Walters, J. for the Court; Flynn, J.; Kistler, J.; Nakamoto, J.; & Balmer, C.J., dissenting, joined by Landau, J.
  • Full Text Opinion

Under ORS 138.525(3), a judgment that dismisses a meritless post-conviction petition is not appealable, however, the dismissal must “without prejudice” if the petitioner lacked counsel or the petition was dismissed without a hearing. ORS 138.525(4).

Petitioner appealed a judgment from the Court of Appeals that denied his appeal on the grounds that the post-conviction court’s judgment was not appealable under ORS 138.525 because the petition failed to state a claim. Petitioner argued that a dismissal from the post-conviction court without a hearing is necessarily “without prejudice” and is therefore appealable. Defendant argued that while the post-conviction court erred, the Court of Appeals lacked jurisdiction to hear the claim because it was not appealable. Under ORS 138.525(3), a judgment that dismisses a meritless post-conviction petition is not appealable, however, the dismissal must “without prejudice” if the petitioner lacked counsel or the petition was dismissed without a hearing. ORS 138.525(4). Oregon Supreme Court held that based on the text, context, and legislative history of ORS 138.525, an appeal is not barred if an appellant does not have the benefit of a hearing or counsel because the legislature did not intend to hinder the appellate court’s ability to correct an error of the post-conviction court on the basis that the judgment is “with prejudice.” The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. 

Advanced Search