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Boone v. Wright8/20/1992
SUPREME COURT OF OREGON
SC Nos. S38940, S38975 (Consolidated for Opinion)
1992.OR.40943 ; 314 Or. 135; 836 P.2d 727
August 20, 1992
DAVID A. BOONE, PETITIONER ON REVIEW,
v.
R. L. WRIGHT, SUPERINTENDENT, EASTERN OREGON CORRECTIONAL INSTITUTION, RESPONDENT ON REVIEW. ELVIN LARRY REEVE, PETITIONER ON REVIEW, V. MANFRED MAASS, SUPERINTENDENT, OREGON STATE PENITENTIARY, RESPONDENT ON REVIEW
On review from the Court of Appeals. CC Nos. CV 89-1059, 90-C-10150; CA Nos. A64820, A65481.
Allan L. Gallagher, of Bettis & Associates, P.C., Canby, argued the cause and filed the petition for petitioner on review Boone. With him on the petition was Wade P. Bettis, Jr., LaGrande.
David B. Kuhns, Salem, argued the cause and filed the petition for petitioner on review Reeve.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondents on review.
In Banc. Graber, J.
Graber
Before 1989, the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680, imposed no time limit for persons convicted of crimes to file petitions for post-conviction relief. ORS 138.510(2) (1987) provided that petitions for post-conviction relief "may be filed without limit in time." In 1989, the legislature amended ORS 138.510(2) to add a 120-day statute of limitations for filing petitions for post-conviction relief:
"A petition pursuant to ORS 138.510 to 138.680 must be filed within 120 days of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:
"(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.
"(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts."
That amendment became effective on August 5, 1989. Or Laws 1989, ch 1053, ยงยง 18 and 22. The issue in these cases is whether the limitation period prescribed in the 1989 amendment applies to petitions filed by persons whose convictions and appeals became final before the effective date of the amendment. We conclude that it does not.
Both petitioners filed petitions for post-conviction relief more than 120 days after their convictions and appeals became final and also more than 120 days after the amendment to ORS 138.510(2) became effective. Defendants moved to dismiss both petitions on the ground that they were not timely filed under ORS 138.510(2). The post-conviction court granted both motions and dismissed the petitions, and petitioners appealed. The Court of Appeals, in banc, affirmed the dismissals. Reeve v. Maass, 111 Or App 213, 825 P2d 652 (1992); Boone v. Wright, 110 Or App 281, 822 P2d 719 (1992). We reverse.
Petitioners contend that the legislature did not express an intent to apply the limitations period to petitions
filed by persons whose convictions and appeals became final before August 5, 1989, and that, in the absence of such an express legislative intent, courts construe statutes of limitation to be prospective only. Defendants contend that the legislature did intend the limitations period to apply to such petitions, because the
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