Can a Defendant Seek a New Trial Before Sentencing in Oregon Criminal Cases?

After a criminal jury returns a guilty verdict, defendants and their families often ask whether anything can be done before sentencing. Oregon law does permit certain post-verdict motions, but the availability of relief is narrow and the standards are strict.

This article explains when a motion for new trial may be filed before sentencing, why such motions often fail when based on evidence known during trial, and why post-conviction relief is frequently the proper procedural vehicle instead.

Motions for New Trial Are Authorized After Verdict and Before Sentencing

Under Oregon law, a criminal defendant may move for a new trial after a jury verdict but before sentencing and entry of judgment.

The governing statute is ORS 136.535, which incorporates Oregon Rule of Civil Procedure (ORCP) 64 into criminal proceedings, with the limitation that “a new trial shall not be granted on application of the state.”

The Oregon Supreme Court has described ORS 136.535 as the legislature’s “completed thought” regarding post-verdict motions in criminal cases, explaining that “the only post-verdict motions authorized by statute in criminal cases are motions for a new trial and motions in arrest of judgment.” State v. Metcalfe, 328 Or. 309 (1999).

Timing Rules: Filing Before Judgment Is Timely

ORS 136.535 provides that a motion for new trial “shall be filed within five days after the filing of the judgment sought to be set aside.” Oregon appellate courts have repeatedly held that this language establishes an outer time limit, not a requirement that judgment be entered before the motion may be filed.

In State v. Howard, 205 Or.App. 408 (2006), the Court of Appeals held that the statute “may be understood to place an outer limit of filing, that is, ‘no later than’ five days after the filing of the judgment,” and does not require motions to be filed after judgment entry.

This interpretation mirrors the civil rule. In Association of Unit Owners of Timbercrest Condominiums v. Warren, 242 Or.App. 425 (2011), the court reaffirmed that “a motion for new trial must be filed not later than 10 days after entry of the judgment and such a motion is timely notwithstanding that it is filed before entry of judgment.”

Accordingly, a motion for new trial filed between verdict and sentencing is not untimely as a matter of law.

Important Limitation: Jury Trials Only

Not all criminal trials allow for new trial motions. In State v. Keene, 317 Or.App. 19 (2022), the Court of Appeals held that new trial motions are available only in criminal jury trials, not bench trials, because ORS 136.535 incorporates ORCP 64 A, B, and D through G, but excludes ORCP 64 C, which governs bench trial new trial procedures.

Newly Discovered Evidence Under ORCP 64 B(4)

The most commonly asserted basis for a new trial is newly discovered evidence under ORCP 64 B(4), which permits relief only for:

“newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial.”

Oregon courts apply a strict six-factor test, articulated by the Oregon Supreme Court in State v. Arnold, 320 Or. 111 (1994). To prevail, the movant must show that the evidence:

1. Will probably change the result if a new trial is granted

2. Was discovered after trial

3. Could not have been discovered and produced at trial with reasonable diligence

4. Is material

5. Is not merely cumulative

6. Is not merely impeaching or contradictory

Failure to satisfy any one of these factors defeats the motion.

Newly discovered evidence claims are disfavored and “construed with great strictness.” State v. Fentress, 35 Or.App. 63 (1978).

Evidence Known to the Defendant or Counsel Is Not “Newly Discovered”

Oregon appellate courts draw a firm distinction between genuinely new evidence and overlooked evidence.

In State v. Cadigan, 212 Or.App. 686 (2007), the Court of Appeals held that evidence is “newly discovered” only when its existence is first known to the defendant or counsel. Evidence known to the defendant before trial, even if counsel did not appreciate its relevance, does not qualify.

The court explained:

“Whatever the materiality of the photographic evidence, the emerging nature of its relevance, or the diligence of defendant’s attorney, the evidence was simply not ‘newly discovered.’”

This principle was reinforced in State v. McCool, 221 Or.App. 56 (2008), where the defendant knew the identity and location of alibi witnesses before trial but counsel failed to present them. The court held that such failures may support a claim for post-conviction relief but do not support a newly discovered evidence motion.

By contrast, Oregon courts have granted new trials where the six-factor test is satisfied. For example, in State v. Acree, 205 Or.App. 328 (2006), the Court of Appeals granted a new trial based on newly discovered evidence that met all required elements. Similarly, in State v. Walker, 223 Or.App. 554 (2008), the court considered whether witnesses located after trial could satisfy the diligence requirement.

Most recently, State v. Dikeos, 330 Or.App. 698 (2024), applied the six-factor test to newly discovered physical evidence and reaffirmed the strict diligence and materiality requirements.

Tactical Decisions by Counsel and Post-Conviction Relief

When evidence was disclosed to trial counsel before or during trial but was not presented due to a strategic or tactical decision, Oregon law treats the issue as ineffective assistance of counsel, not newly discovered evidence.

Post-conviction relief is governed by ORS 138.530(1)(a), which provides relief when there has been “a substantial denial” of constitutional rights, including the right to effective assistance of counsel.

Under Oregon law, a petitioner must show that counsel failed to exercise reasonable professional skill and judgment and that the deficiency had “a tendency to affect the result of the prosecution.” Martinez v. Baldwin, 157 Or.App. 280 (1998).

The Court of Appeals clarified in Delgado-Juarez v. Cain, 307 Or.App. 83 (2020), that a tactical decision is not immune from review merely because it was intentional. The decision must result from “appropriate consideration of the risks and benefits.”

Ineffective assistance claims must generally be litigated through post-conviction relief rather than direct appeal. State v. Rhodes, 309 Or.App. 318 (2021).

Procedural Constraints on Post-Conviction Relief

Post-conviction relief is subject to statutory limitations:

• ORS 138.540 prohibits filing a post-conviction petition while direct appeal or new trial motions remain available

• ORS 138.510(3) imposes a two-year filing deadline, subject to limited exceptions

• ORS 138.580 sets detailed pleading and certification requirements

Because of these constraints, filing weak or procedurally flawed new trial motions can complicate or delay later relief.

Appellate Review Is Limited

Even when a new trial motion is denied, appellate review may be limited. In State v. Puckett, 332 Or.App. 64 (2024), the Court of Appeals emphasized jurisdictional and scope limits on appellate review of new trial denials.

Practical Takeaway

Oregon law permits a motion for new trial after verdict but before sentencing, but relief is rare. Evidence known to the defendant or disclosed to counsel during trial is not newly discovered, even if counsel failed to use it. Claims arising from counsel’s failure to investigate or present available evidence generally belong in post-conviction relief, not pre-sentencing litigation.

Final Note

This article is for general educational purposes only. It is not legal advice and reflects a high-level summary of Oregon law based on a limited review of existing authority. Every case depends on its specific facts, procedural posture, and record.

If you are facing sentencing after a trial conviction, consult qualified counsel to evaluate whether post-conviction relief or other remedies may be appropriate.