State v. Johnson
Case #: A143212
Sercombe, P.J. for the Court; Ortega, J.; and Brewer, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A143211.pdf
Appellate Procedure: Under ORS 138.690, a criminal defendant lacks the right to appeal a trial court's order dismissing his motion requesting DNA evidence.
Defendant appealed the trial court’s order denying his motion requesting DNA testing pursuant to ORS 138.690. In 1993, Defendant plead no contest to two counts of murder for which he received concurrent life sentences. In 2007, Defendant filed a request for DNA testing in accordance with ORS 138.690. The trial court denied the motion because the terms of his prior plea agreement barred the pursuit of new evidence. The State argued that the trial court’s order is not appealable, and thus lacked jurisdiction to be heard. The Defendant countered that the terms of his plea agreement did not bar him from appeal and enforcement of any such agreement violates due process. The Court of Appeals ruled that ORS 138.690 provided no statutory right to appeal, thus preventing the Court from reaching the substantive issues due to lack of jurisdiction. Further, the three other sources in which a right of appeal could be granted, ORS 138.650, ORS 138.040 and ORS 19.205, were not applicable in this circumstance. Appeal dismissed.