State v. Harris

Under ORS 138.697(1), a circuit court order granting DNA testing is not “limited” by a condition that a defendant may not collaterally attack his or her convictions if no exculpatory evidence is found.

In 1994, Defendant was convicted of multiple counts of aggravated murder, rape and sexual abuse, and received a sentence of life without the possibility of parole. In 2004, Defendant filed a motion seeking DNA testing of evidence used in his 1994 convictions. The evidence was held at a nongovernmental lab; Defendant and the State stipulated to the testing of the samples as required by ORS 138.692(2)(b) on condition that Defendant was barred from collaterally attacking his convictions in this case, including any appeal, post-conviction or habeas corpus proceedings should the testing fail to produce exculpatory evidence. After testing, no exculpatory evidence was found. Defendant appealed from the court order, arguing the circuit court erred by entering the conditional order granting DNA testing because it was “limiting.” The State moved to dismiss because, under ORS 138.697(1), Defendant cannot appeal from the circuit court’s order requesting DNA testing unless the order denies or limits the testing. The Appellate Commissioner granted the motion to dismiss because Defendant was free to make a future motion for DNA testing, which would not violate the condition of the order granting DNA testing. The Court held that the conditional order did not limit Defendant’s ability to file a future motion for DNA testing, that Defendant did receive the DNA testing requested, and any potential future limitation was speculative and noncognizable; therefore, the circuit court order is not appealable under ORS 138.697(1). Reconsideration allowed; prior order adhered to.