USA Statutes : oregon
Title : TITLE 14 PROCEDURE IN CRIMINAL MATTERS GENERALLY
Chapter : Chapter 137 Judgment and Execution; Parole and Probation by the Court
(1) The
statutes that define offenses impose a duty upon the court having
jurisdiction to pass sentence in accordance with this section or, for
felonies committed on or after November 1, 1989, in accordance with rules
of the Oregon Criminal Justice Commission unless otherwise specifically
provided by law.
(2) If it cannot be determined whether the felony was committed on
or after November 1, 1989, the defendant shall be sentenced as if the
felony had been committed prior to November 1, 1989.
(3) Except when a person is convicted of a felony committed on or
after November 1, 1989, if the court is of the opinion that it is in the
best interests of the public as well as of the defendant, the court may
suspend the imposition or execution of any part of a sentence for any
period of not more than five years. The court may extend the period of
suspension beyond five years in accordance with subsection (4) of this
section.
(4) If the court suspends the imposition or execution of a part of
a sentence for an offense other than a felony committed on or after
November 1, 1989, the court may also impose and execute a sentence of
probation on the defendant for a definite or indefinite period of not
more than five years. However, upon a later finding that a defendant
sentenced to probation for a felony has violated a condition of the
probation and in lieu of revocation, the court may order the period of
both the suspended sentence and the sentence of probation extended until
a date not more than six years from the date of original imposition of
sentence. Time during which the probationer has absconded from
supervision and a bench warrant has been issued for the probationer’s
arrest shall not be counted in determining the time elapsed since
imposition of the sentence of probation.
(5) If the court announces that it intends to suspend imposition or
execution of any part of a sentence, the defendant may, at that time,
object and request imposition of the full sentence. In no case, however,
does the defendant have a right to refuse the court’s order, and the
court may suspend imposition or execution of a part of the sentence
despite the defendant’s objection or request. If the court further
announces that it intends to sentence the defendant to a period of
probation, the defendant may, at that time, object and request that a
sentence of probation or its conditions not be imposed or that different
conditions be imposed. In no case, however, does the defendant have the
right to refuse a sentence of probation or any of the conditions of the
probation, and the court may sentence the defendant to probation subject
to conditions despite the defendant’s objection or request.
(6) The power of the judge of any court to suspend execution of any
part of a sentence or to sentence any person convicted of a crime to
probation shall continue until the person is delivered to the custody of
the Department of Corrections.
(7) When a person is convicted of an offense and the court does not
suspend the imposition or execution of any part of a sentence or when a
suspended sentence or sentence of probation is revoked, the court shall
impose the following sentence:
(a) A term of imprisonment;
(b) A fine;
(c) Both imprisonment and a fine; or
(d) Discharge of the defendant.
(8) This section does not deprive the court of any authority
conferred by law to enter a judgment for the forfeiture of property,
suspend or cancel a license, remove a person from office or impose any
other civil penalty. An order exercising that authority may be included
as part of the judgment of conviction.
(9) When imposing sentence for a felony committed on or after
November 1, 1989, the court shall submit sentencing information to the
commission in accordance with rules of the commission.
(10) A judgment of conviction that includes a term of imprisonment
for a felony committed on or after November 1, 1989, shall state the
length of incarceration and the length of post-prison supervision. The
judgment of conviction shall also provide that if the defendant violates
the conditions of post-prison supervision, the defendant shall be subject
to sanctions including the possibility of additional imprisonment in
accordance with rules of the commission. [Amended by 1971 c.743 §322;
1981 c.181 §1; 1987 c.320 §27; 1989 c.790 §6; 1989 c.849 §1; 1993 c.14
§1; 2003 c.576 §388; 2005 c.10 §2]If the court
suspends the imposition or execution of a part of a sentence of, or
imposes a sentence of probation on, any person convicted of violating or
attempting to violate ORS 163.365, 163.375, 163.395, 163.405, 163.408,
163.411, 163.425 or 163.427, the court shall sentence the defendant to
probation for a period of at least five years and no more than the
maximum statutory indeterminate sentence for the offense. [1991 c.831 §2;
1993 c.14 §2; 1993 c.301 §2; 1999 c.161 §3]Note: 137.012 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 by legislative action.
See Preface to Oregon Revised Statutes for further explanation. At the time of
sentencing, the victim or the victim’s next of kin has the right to
appear personally or by counsel, and has the right to reasonably express
any views concerning the crime, the person responsible, the impact of the
crime on the victim, and the need for restitution and compensatory fine.
[1987 c.2 §10]Except as otherwise specifically provided by law, all
fines, costs and forfeited security deposits ordered paid in criminal
actions and proceedings, as defined in ORS 131.005, in the circuit court
shall be accounted for and distributed as provided in ORS 137.293 and
137.295, as monetary obligations payable to the state. [1981 s.s. c.3
§102; 1983 c.763 §42; 1987 c.905 §5; 1999 c.1051 §253](1) After a plea or verdict of guilty, or after a verdict against
the defendant on a plea of former conviction or acquittal, if the
judgment is not arrested or a new trial granted, the court shall appoint
a time for pronouncing judgment.
(2)(a) The time appointed shall be at least two calendar days after
the plea or verdict if the court intends to remain in session so long. If
the court does not intend to remain in session at least two calendar
days, the time appointed may be sooner than two calendar days, but shall
be as remote a time as can reasonably be allowed. However, in the latter
case, the judgment shall not be given less than six hours after the plea
or verdict, except with the consent of the defendant.
(b) Except for good cause shown or as otherwise provided in this
paragraph, a court shall not delay for more than 31 calendar days after
the plea or verdict the sentencing of a defendant held in custody on
account of the pending proceedings. Except for good cause shown or as
otherwise provided in this paragraph, a court shall not delay for more
than 56 calendar days after the plea or verdict the sentencing of a
defendant not held in custody on account of the pending proceedings. If
the defendant is not in custody and the court does not pronounce judgment
within 56 calendar days after the plea or verdict, any period of
probation imposed as a part of a subsequent judgment shall begin to run
from the date of the plea or verdict.
(3) If the defendant is in custody following the verdict, the court
shall pronounce judgment as soon as practicable, but in any case within
seven calendar days following the verdict if no presentence investigation
is ordered, and within seven calendar days after delivery of the
presentence report to the court if a presentence investigation has been
ordered; however, the court may delay pronouncement of judgment beyond
the limits of this subsection for good cause shown.
(4) If the final calendar day a defendant must be sentenced is not
a judicial day then sentencing may be delayed until the next judicial day.
(5)(a) At the time a court pronounces judgment the defendant, if
present, shall be advised of the right to appeal and of the procedure for
protecting that right. If the defendant is not present, the court shall
advise the defendant in writing of the right to appeal and of the
procedure for protecting that right.
(b) If the defendant is sentenced subsequent to a plea of guilty or
no contest or upon probation revocation or sentence suspension, or if the
defendant is resentenced after an order by an appellate court or a
post-conviction relief court, the court shall advise the defendant of the
limitations on appealability imposed by ORS 138.050 (1) and 138.222 (7).
If the defendant is not present, the court shall advise the defendant in
writing of the limitations on appealability imposed by ORS 138.050 (1)
and 138.222 (7).
(6) If the defendant is financially eligible for appointment of
counsel at state expense on appeal under ORS 138.500, trial counsel shall
determine whether the defendant wishes to pursue an appeal. If the
defendant wishes to pursue an appeal, trial counsel shall transmit to the
office of public defense services established under ORS 151.216, on a
form prepared by the office, information necessary to perfect the appeal.
[Amended by 1971 c.565 §18a; 1987 c.242 §1; 1991 c.111 §12; 2001 c.644
§4; 2003 c.14 §57] For the
purpose of giving judgment, if the conviction is for:
(1) A felony, the defendant shall be personally present.
(2) A misdemeanor, judgment may be given in the absence of the
defendant. [Amended by 1993 c.581 §1; 1997 c.827 §1; 2005 c.566 §9]
If the defendant is in custody, the court shall:
(1) Direct the officer in whose custody the defendant is to bring
the defendant before the court for judgment and the officer shall do so
accordingly; or
(2) Ensure that arrangements for the defendant to appear for
judgment by simultaneous electronic transmission as described in ORS
131.045 have been made. [Amended by 2005 c.566 §10](1) If the defendant has been released on a
release agreement or security deposit and does not appear for judgment
when personal attendance is required by the court, the court may order a
forfeiture of the security deposit as provided in ORS 135.280. In
addition, if the defendant fails to appear as required by the release
agreement or security deposit, the court may direct the clerk to issue a
bench warrant for the defendant’s arrest.
(2) At any time after the making of the order for the bench
warrant, the clerk, on the application of the district attorney, shall
issue such warrant, as by the order directed, whether the court is
sitting or not. [Amended by 1973 c.836 §257] The bench warrant shall be
substantially in the following form:
___________________________________________________________________________
___CIRCUIT COURT
FOR THE COUNTY OF
______, STATE OF OREGON
IN THE NAME OF THE STATE
OF OREGONTo any peace officer in the State of Oregon, greeting:
A B having been on the ______ day of______, 2___, convicted in this
court of the crime of (designating it generally), you are commanded to
arrest the above-named defendant forthwith and bring the defendant before
such court for judgment or, if the court has adjourned for the term,
deliver the defendant into the custody of the jailor of this county. By
order of the court.
Witness my hand and seal of said circuit court, affixed at ______,
in said county, this ______ day of______, 2___.
[L. S.]C D, Clerk of the Court
___________________________________________________________________________
___[Amended by 1957 c.659 §1; 1971 c.423 §1] The
bench warrant mentioned in ORS 137.050 may issue to one or more counties
of the state and may be served in the same manner as any other warrant of
arrest issued by a magistrate. [Amended by 1973 c.836 §258] (1) The judge in a
criminal action shall ensure that the creation and filing of a judgment
document complies with this section. On appeal, the appellate court may
give leave as provided in ORS 19.270 for entry of a judgment document
that complies with this section but may not reverse or set aside a
judgment, determination or disposition on the sole ground that the
judgment document fails to comply with this section.
(2) A judgment document in a criminal action must comply with ORS
18.038. In addition, a judgment document in a criminal action must:
(a) Indicate whether the defendant was determined to be financially
eligible for purposes of appointed counsel in the action.
(b) Indicate whether the court appointed counsel for the defendant
in the action.
(c) If there is no attorney for the defendant, indicate whether the
defendant knowingly waived any right to an attorney after having been
informed of that right.
(d) Include the identity of the recorder or reporter for the
proceeding or action who is to be served under ORS 138.081.
(e) Include any information specifically required by statute or by
court rule.
(f) Specify clearly the court’s determination for each charge in
the information, indictment or complaint.
(g) Specify clearly the court’s disposition, including all legal
consequences the court establishes or imposes. If the determination is
one of conviction, the judgment document must include any suspension of
sentence, forfeiture, imprisonment, cancellation of license, removal from
office, monetary obligation, probation, conditions of probation,
discharge, restitution, community service and all other sentences and
legal consequences imposed by the court. Nothing in this paragraph
requires the judgment document to specify any consequences that may
result from the determination but are not established or imposed by the
court.
(h) Include the identities of the attorney for the state and the
attorney, if any, for the defendant.
(3) A judgment document in a criminal action that includes a money
award, as defined in ORS 18.005, must comply with ORS 18.048.
(4) The requirements of this section do not apply to a judgment
document if the action was commenced by the issuance of a uniform
citation adopted under ORS 1.525 and the court has used the space on the
citation for the entry of a judgment. The exemption provided by this
subsection does not apply if any indictment, information or complaint
other than a uniform citation is filed in the action. [1989 c.472 §2;
1995 c.117 §1; 1997 c.526 §3; 2001 c.962 §88; 2003 c.300 §§1,2; 2003
c.576 §162]When a person is convicted of a felony, a Class A misdemeanor
or a sex crime, as defined in ORS 181.594, the court shall ensure that
the person’s fingerprints have been taken. The law enforcement agency
attending upon the court is the agency responsible for obtaining the
fingerprints. The agency attending upon the court may, by agreement,
arrange for another law enforcement agency to obtain the fingerprints on
its behalf. [1989 c.790 §19; 1997 c.538 §14]Note: 137.074 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) This section applies to any person
convicted of:
(a) A felony;
(b) Sexual abuse in the third degree or public indecency;
(c) Conspiracy or attempt to commit rape in the third degree,
sodomy in the third degree, sexual abuse in the second degree, burglary
in the second degree or promoting prostitution; or
(d) Murder or aggravated murder.
(2) When a person is convicted of an offense listed in subsection
(1) of this section:
(a) The person shall, whether or not ordered to do so by the court
under paragraph (b) of this subsection, provide a blood or buccal sample
at the request of the appropriate agency designated in paragraph (c) of
this subsection.
(b) The court shall include in the judgment of conviction an order
stating that a blood or buccal sample is required to be obtained at the
request of the appropriate agency and, unless the convicted person lacks
the ability to pay, that the person shall reimburse the appropriate
agency for the cost of obtaining and transmitting the blood or buccal
sample. If the judgment sentences the convicted person to probation, the
court shall order the convicted person to submit to the obtaining of a
blood or buccal sample as a condition of the probation.
(c) The appropriate agency shall cause a blood or buccal sample to
be obtained and transmitted to the Department of State Police. The agency
shall cause the sample to be obtained as soon as practicable after
conviction. The agency shall obtain the convicted person’s thumbprint at
the same time the agency obtains the blood or buccal sample. The agency
shall include the thumbprint with the identifying information that
accompanies the sample. Whenever an agency is notified by the Department
of State Police that a sample is not adequate for analysis, the agency
shall obtain and transmit a blood sample. The appropriate agency shall be:
(A) The Department of Corrections, whenever the convicted person is
committed to the legal and physical custody of the department.
(B) In all other cases, the law enforcement agency attending upon
the court.
(3)(a) A blood sample may only be drawn in a medically acceptable
manner by a licensed professional nurse, a licensed practical nurse, a
qualified medical technician, a licensed physician or a person acting
under the direction or control of a licensed physician.
(b) A buccal sample may be obtained by anyone authorized to do so
by the appropriate agency. The person obtaining the buccal sample shall
follow the collection procedures established by the Department of State
Police.
(c) A person authorized by this subsection to obtain a blood or
buccal sample shall not be held civilly liable for obtaining a sample in
accordance with this subsection and subsection (2) of this section, ORS
161.325 and 419C.473. The sample shall also be obtained and transmitted
in accordance with any procedures that may be established by the
Department of State Police. However, no test result or opinion based upon
a test result shall be rendered inadmissible as evidence solely because
of deviations from procedures adopted by the Department of State Police
that do not affect the reliability of the opinion or test result.
(4) No sample is required to be obtained if:
(a) The Department of State Police notifies the court or the
appropriate agency that it has previously received an adequate blood or
buccal sample obtained from the convicted person in accordance with this
section or ORS 161.325 or 419C.473; or
(b) The court determines that obtaining a sample would create a
substantial and unreasonable risk to the health of the convicted person.
(5) The provisions of subsections (1) to (4) of this section apply
to any person who, on or after September 29, 1991, is serving a term of
incarceration as a sentence or as a condition of probation imposed for
conviction of an offense listed in subsection (1) of this section, and
any such person shall submit to the obtaining of a blood or buccal
sample. Before releasing any such person from incarceration, the
supervisory authority shall cause a blood or buccal sample and the
person’s thumbprint to be obtained and transmitted in accordance with
subsections (1) to (4) of this section. [1991 c.669 §§2,5; 1993 c.14 §3;
1993 c.33 §298; 1993 c.301 §3; 1999 c.97 §1; 2001 c.852 §1]Note: 137.076 (5) was enacted into law by the Legislative Assembly
but was not added to or made a part of ORS chapter 137 by legislative
action. See Preface to Oregon Revised Statutes for further explanation.(Presentence Report) The
presentence report is not a public record and shall be available only to:
(1) The sentencing court for the purpose of assisting the court in
determining the proper sentence to impose and to other judges who
participate in a sentencing council discussion of the defendant. The
sentencing judge may disclose information from the presentence report
that is necessary to address the content of the report, examine the
reasoning for a sentencing recommendation or to explain the reasons for
the sentence imposed. Appellate judges may disclose information from the
presentence report that is necessary for legal analysis of the case or to
report the reasoning of the appellate court.
(2) The Department of Corrections, State Board of Parole and
Post-Prison Supervision and other persons or agencies having a legitimate
professional interest in the information likely to be contained therein.
These agencies or persons may make the presentence report, or any reports
based on the contents of that report, available to the victim.
(3) Appellate or review courts where relevant to an issue on which
an appeal is taken or post-conviction relief sought.
(4) The district attorney, the defendant or the counsel of the
defendant, as provided in ORS 137.079. The district attorney and counsel
of the defendant may retain a copy of the presentence report as a part of
the permanent records of the case. The district attorney and counsel of
the defendant may disclose the contents of the presentence report to
individuals or agencies when preparing for the sentencing of the
defendant. “Individuals and agencies” include victims, psychologists,
psychiatrists, medical doctors and any other person or agency who may
assist the state or the defendant at the time of sentencing. [1973 c.836
§260; 1987 c.320 §28; 1989 c.408 §1](1) A copy of the presentence report and all other written
information concerning the defendant that the court considers in the
imposition of sentence shall be made available to the district attorney,
the defendant or defendant’s counsel at least five judicial days before
the sentencing of the defendant. All other written information, when
received by the court outside the presence of counsel, shall either be
summarized by the court in a memorandum available for inspection or
summarized by the court on the record before sentence is imposed.
(2) The court may except from disclosure parts of the presentence
report or other written information described in subsection (1) of this
section which are not relevant to a proper sentence, diagnostic opinions
which might seriously disrupt a program of rehabilitation if known by the
defendant, or sources of information which were obtainable with an
expectation of confidentiality.
(3) If parts of the presentence report or other written information
described in subsection (1) of this section are not disclosed under
subsection (2) of this section, the court shall inform the parties that
information has not been disclosed and shall state for the record the
reasons for the court’s action. The action of the court in excepting
information shall be reviewable on appeal.
(4) A defendant who is being sentenced for felonies committed prior
to November 1, 1989, may file a written motion to correct the criminal
history contained in the presentence report prior to the date of
sentencing. At sentencing, the court shall consider defendant’s motion to
correct the presentence report and shall correct any factual errors in
the criminal history contained in that report. An order allowing or
denying a motion made pursuant to this subsection shall not be reviewable
on appeal. If corrections are made by the court, only corrected copies of
the report shall be provided to individuals or agencies pursuant to ORS
137.077.
(5)(a) The provisions of this subsection apply only to a defendant
being sentenced for a felony committed on or after November 1, 1989.
(b) Except as otherwise provided in paragraph (c) of this
subsection, the defendant’s criminal history as set forth in the
presentence report shall satisfy the state’s burden of proof as to the
defendant’s criminal history.
(c) Prior to the date of sentencing, the defendant shall notify the
district attorney and the court in writing of any error in the criminal
history as set forth in the presentence report. Except to the extent that
any disputed portion is later changed by agreement of the district
attorney and defendant with the approval of the court, the state shall
have the burden of proving by a preponderance of evidence any disputed
part of the defendant’s criminal history. The court shall allow the state
reasonable time to produce evidence to meet its burden.
(d) The court shall correct any error in the criminal history as
reflected in the presentence report.
(e) If corrections to the presentence report are made by the court,
only corrected copies of the report shall be provided to individuals or
agencies pursuant to ORS 137.077.
(f) Except as provided in ORS 138.222, the court’s decision on
issues relating to a defendant’s criminal history shall not be reviewable
on appeal. [1973 c.836 §261; 1977 c.372 §11; 1983 c.649 §1; 1989 c.408
§2; 1989 c.790 §8](Aggravation or Mitigation)(1) After a plea or verdict of guilty, or after a verdict
against the defendant on a plea of former conviction or acquittal, in a
case where discretion is conferred upon the court as to the extent of the
punishment to be inflicted, the court, upon the suggestion of either
party that there are circumstances which may be properly considered in
aggravation or mitigation of the punishment, may, in its discretion, hear
the same summarily at a specified time and upon such notice to the
adverse party as it may direct.
(2) Notwithstanding any other provision of law, the consideration
of aggravating and mitigating circumstances as to felonies committed on
or after November 1, 1989, including the maximum sentence that may be
imposed because of aggravating circumstances, shall be in accordance with
rules of the Oregon Criminal Justice Commission. [Amended by 1989 c.790
§9]When a court sentences a defendant convicted of any crime
involving a physical or sexual assault, the court shall give
consideration to a victim’s particular vulnerability to injury in such
case, due to the victim’s youth, advanced age or physical disability.
Such particular vulnerability of the victim is a fact enhancing the
seriousness of any assault, and the court shall consider it as such in
imposing the sentence within the limits otherwise provided by law. [1985
c.767 §1]Note: 137.085 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.
(1) In determining aggravation or mitigation, the court shall consider:
(a) Any evidence received during the proceeding;
(b) The presentence report, where one is available; and
(c) Any other evidence relevant to aggravation or mitigation that
the court finds trustworthy and reliable.
(2) When a witness is so sick or infirm as to be unable to attend,
the deposition of the witness may be taken out of court at such time and
place, and upon such notice to the adverse party, and before such person
authorized to take depositions, as the court directs. [Amended by 1965
c.400 §1; 1973 c.836 §259; 1989 c.790 §10] If the
defendant consents thereto, the defendant may be examined as a witness in
relation to the circumstances which are alleged to justify aggravation or
mitigation of the punishment; but if the defendant gives testimony at the
request of the defendant, then the defendant must submit to be examined
generally by the adverse party.(Compensatory Fine) (1) Whenever the court imposes a fine as
penalty for the commission of a crime resulting in injury for which the
person injured by the act constituting the crime has a remedy by civil
action, unless the issue of punitive damages has been previously decided
on a civil case arising out of the same act and transaction, the court
may order that the defendant pay any portion of the fine separately to
the clerk of the court as compensatory fines in the case. The clerk shall
pay over to the injured victim or victims, as directed in the court’s
order, moneys paid to the court as compensatory fines under this
subsection. This section shall be liberally construed in favor of victims.
(2) Compensatory fines may be awarded in addition to restitution
awarded under ORS 137.103 to 137.109.
(3) Nothing in this section limits or impairs the right of a person
injured by a defendant’s criminal acts to sue and recover damages from
the defendant in a civil action. Evidence that the defendant has paid or
been ordered to pay compensatory fines under this section may not be
introduced in any civil action arising out of the facts or events which
were the basis for the compensatory fine. However, the court in such
civil action shall credit any compensatory fine paid by the defendant to
a victim against any judgment for punitive damages in favor of the victim
in the civil action. [1981 c.637 §2; 1987 c.2 §11](Restitution) As used in ORS
137.101 to 137.109, 161.675 and 161.685:
(1) “Criminal activities” means any offense with respect to which
the defendant is convicted or any other criminal conduct admitted by the
defendant.
(2) “Economic damages” has the meaning given that term in ORS
31.710, except that “economic damages” does not include future impairment
of earning capacity.
(3) “Restitution” means full, partial or nominal payment of
economic damages to a victim. Restitution is independent of and may be
awarded in addition to a compensatory fine awarded under ORS 137.101.
(4) “Victim” means:
(a) The person against whom the defendant committed the criminal
offense, if the court determines that the person has suffered economic
damages as a result of the offense.
(b) Any person not described in paragraph (a) of this subsection
whom the court determines has suffered economic damages as a result of
the defendant’s criminal activities.
(c) The Criminal Injuries Compensation Account, if it has expended
moneys on behalf of a victim described in paragraph (a) of this
subsection.
(d) An insurance carrier, if it has expended moneys on behalf of a
victim described in paragraph (a) of this subsection.
(5) “Victim” does not include any coparticipant in the defendant’s
criminal activities. [1977 c.371 §1; 1981 c.637 §1; 1983 c.488 §1; 1983
c.740 §16; 1987 c.905 §16; 2005 c.564 §1; 2005 c.642 §4] (1) When a
person is convicted of a crime, or a violation as described in ORS
153.008, that has resulted in economic damages, the district attorney
shall investigate and present to the court, prior to the time of
sentencing, evidence of the nature and amount of the damages. If the
court finds from the evidence presented that a victim suffered economic
damages, in addition to any other sanction it may impose, the court shall:
(a) Include in the judgment a requirement that the defendant pay
the victim restitution in a specific amount that equals the full amount
of the victim’s economic damages as determined by the court; or
(b) Include in the judgment a requirement that the defendant pay
the victim restitution, and that the specific amount of restitution will
be established by a supplemental judgment based upon a determination made
by the court within 90 days of entry of the judgment. In the supplemental
judgment, the court shall establish a specific amount of restitution that
equals the full amount of the victim’s economic damages as determined by
the court. The court may extend the time within which the determination
and supplemental judgment may be completed for good cause. The lien,
priority of the lien and ability to enforce the specific amount of
restitution established under this paragraph by a supplemental judgment
relates back to the date of the original judgment that is supplemented.
(2) After the district attorney makes a presentation described in
subsection (1) of this section, if the court is unable to find from the
evidence presented that a victim suffered economic damages, the court
shall make a finding on the record to that effect.
(3) No finding made by the court or failure of the court to make a
finding under this section limits or impairs the rights of a person
injured to sue and recover damages in a civil action as provided in ORS
137.109.
(4) If a judgment or supplemental judgment described in subsection
(1) of this section includes restitution, a court may delay the
enforcement of the monetary sanctions, including restitution, only if the
defendant alleges and establishes to the satisfaction of the court the
defendant’s inability to pay the judgment in full at the time the
judgment is entered. If the court finds that the defendant is unable to
pay, the court may establish or allow an appropriate supervising
authority to establish a payment schedule, taking into consideration the
financial resources of the defendant and the burden that payment of
restitution will impose, with due regard to the other obligations of the
defendant.
(5) If the defendant objects to the imposition, amount or
distribution of the restitution, the court shall allow the defendant to
be heard on such issue at the time of sentencing or at the time the court
determines the amount of restitution. [1977 c.371 §2; 1983 c.724 §1; 1993
c.533 §1; 1997 c.313 §23; 1999 c.1051 §124; 2003 c.670 §1; 2005 c.564 §2]At any time after entry of a judgment upon conviction of a
crime, the court may amend that part of the judgment relating to
restitution if, in the original judgment, the court included language
imposing, recommending or requiring restitution but failed to conform the
judgment to the requirements of ORS 18.048 or any other law governing the
form of judgments in effect before January 1, 2004. [1997 c.526 §2; 2003
c.576 §163]Note: 137.107 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) Nothing in ORS 137.103
to 137.109, 137.540, 144.102, 144.275, 161.675 and 161.685 limits or
impairs the right of a person injured by a defendant’s commission of a
crime, or by a defendant’s commission of a violation described in ORS
153.008, to sue and recover damages from the defendant in a civil action.
Evidence that the defendant has paid or been ordered to pay restitution
pursuant to ORS 137.103 to 137.109, 137.540, 144.102, 144.275, 161.675
and 161.685 may not be introduced in any civil action arising out of the
facts or events that were the basis for the restitution. However, the
court shall credit any restitution paid by the defendant to a victim
against any judgment in favor of the victim in such civil action.
(2) If conviction in a criminal trial necessarily decides the issue
of a defendant’s liability for economic damages of a victim, that issue
is conclusively determined as to the defendant if it is involved in a
subsequent civil action. [1977 c.371 §7; 1993 c.533 §2; 1997 c.526 §4;
1999 c.1051 §125; 2005 c.564 §3](Collection of Monetary Obligations)(1) Judgments in criminal actions that
impose monetary obligations, including judgments requiring the payment of
fines, costs, assessments, compensatory fines, attorney fees, forfeitures
or restitution, may be assigned by the state, by a municipal court or by
a justice court for collection.
(2)(a) The state may assign a judgment to the Department of Revenue
or a private collection agency.
(b) A justice court may assign a judgment to a private collection
agency or, in a criminal action, to the Department of Revenue for the
purposes described in ORS 156.315.
(c) A municipal court may assign a judgment to:
(A) A private collection agency; or
(B) The Department of Revenue for the purposes described in
subsections (6) to (8) of this section, if the judgment was entered in a
criminal action and part of the judgment is payable to the State of
Oregon.
(d) Nothing in this subsection limits the right of a municipal
court or a justice court to assign for collection judgments in matters
other than criminal actions.
(3) A municipal or justice court may add to any judgment in a
criminal action that includes a monetary obligation a fee for the cost of
collection if the court gives the defendant a period of time to pay the
obligation after the date of imposition of the sentence or after the date
of the hearing or proceeding that results in the imposition of the
financial obligation. The fee may not exceed 25 percent of the monetary
obligation imposed by the court without the addition of the cost of
collection and may not be more than $250. The fee shall be waived or
suspended by the court if the defendant pays the monetary obligation in
the manner required by the court.
(4) A state court shall add to any judgment in a criminal action
that includes a monetary obligation the fees required by ORS 1.202.
(5) As used in subsections (1) to (5) of this section, “criminal
action” has the meaning given that term in ORS 131.005.
(6) If part of a judgment in a criminal action, as described in
subsections (1) to (5) of this section, is payable to the State of
Oregon, a municipal court may assign the judgment to the Collections Unit
in the Department of Revenue for the following purposes:
(a) To determine whether refunds or other sums are owed to the
debtor by the department; and
(b) To deduct the amount of debt from any refunds or other sums
owed to the debtor by the department.
(7) If the Collections Unit determines that refunds or other sums
are owed to the debtor, the department shall deduct the amount of the
debt from any refunds or other sums owed to the debtor by the department.
After also deducting costs of its actions under subsections (6) to (8) of
this section, the department shall remit the amount deducted from refunds
or other sums owed to the debtor to the municipal court that assigned the
judgment.
(8) A debtor whose account is assigned to the Department of Revenue
for setoff under subsections (6) to (8) of this section is entitled to
the notice required by ORS 293.250 (3)(d) and to the opportunity for
payment in ORS 293.250 (3)(c). [1993 c.531 §1; 1995 c.512 §2; 1997 c.801
§99; 1999 c.64 §1; 2001 c.823 §19; 2003 c.375 §1; subsections (6) to (8)
of 2005 Edition enacted as 2005 c.501 §1; 2005 c.501 §2]Note: 137.118 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(Term and Place of Confinement) (1)
Whenever any person is convicted of a felony committed prior to November
1, 1989, the court shall, unless it imposes other than a sentence to
serve a term of imprisonment in the custody of the Department of
Corrections, sentence such person to imprisonment for an indeterminate
period of time, but stating and fixing in the judgment and sentence a
maximum term for the crime, which shall not exceed the maximum term of
imprisonment provided by law therefor; and judgment shall be given
accordingly. Such a sentence shall be known as an indeterminate sentence.
The court shall state on the record the reasons for the sentence imposed.
(2) Whenever any person is convicted of a felony committed on or
after November 1, 1989, the court shall impose sentence in accordance
with rules of the Oregon Criminal Justice Commission.
(3) This section does not affect the indictment, prosecution,
trial, verdict, judgment or punishment of any felony committed before
June 14, 1939, and all laws now and before that date in effect relating
to such a felony are continued in full force and effect as to such a
felony. [Amended by 1967 c.372 §2; 1971 c.743 §324; 1977 c.372 §12; 1987
c.320 §29; 1989 c.790 §11] Notwithstanding any other
provision of law, but subject to ORS 161.605, the maximum consecutive
sentences which may be imposed for felonies committed on or after
November 1, 1989, whether as terms of imprisonment, probation or both,
shall be as provided by rules of the Oregon Criminal Justice Commission.
[1989 c.790 §14]Note: 137.121 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) A sentence imposed by the court may be made concurrent or
consecutive to any other sentence which has been previously imposed or is
simultaneously imposed upon the same defendant. The court may provide for
consecutive sentences only in accordance with the provisions of this
section. A sentence shall be deemed to be a concurrent term unless the
judgment expressly provides for consecutive sentences.
(2) If a defendant is simultaneously sentenced for criminal
offenses that do not arise from the same continuous and uninterrupted
course of conduct, or if the defendant previously was sentenced by any
other court within the United States to a sentence which the defendant
has not yet completed, the court may impose a sentence concurrent with or
consecutive to the other sentence or sentences.
(3) When a defendant is sentenced for a crime committed while the
defendant was incarcerated after sentencing for the commission of a
previous crime, the court shall provide that the sentence for the new
crime be consecutive to the sentence for the previous crime.
(4) When a defendant has been found guilty of more than one
criminal offense arising out of a continuous and uninterrupted course of
conduct, the sentences imposed for each resulting conviction shall be
concurrent unless the court complies with the procedures set forth in
subsection (5) of this section.
(5) The court has discretion to impose consecutive terms of
imprisonment for separate convictions arising out of a continuous and
uninterrupted course of conduct only if the court finds:
(a) That the criminal offense for which a consecutive sentence is
contemplated was not merely an incidental violation of a separate
statutory provision in the course of the commission of a more serious
crime but rather was an indication of defendant’s willingness to commit
more than one criminal offense; or
(b) The criminal offense for which a consecutive sentence is
contemplated caused or created a risk of causing greater or qualitatively
different loss, injury or harm to the victim or caused or created a risk
of causing loss, injury or harm to a different victim than was caused or
threatened by the other offense or offenses committed during a continuous
and uninterrupted course of conduct. [1987 c.2 §12; 1991 c.67 §29; 1991
c.111 §14; 1995 c.657 §2; 2003 c.14 §58](1) If the
court imposes a sentence upon conviction of a felony that includes a term
of incarceration that exceeds 12 months:
(a) The court shall not designate the correctional facility in
which the defendant is to be confined but shall commit the defendant to
the legal and physical custody of the Department of Corrections; and
(b) If the judgment provides that the term of incarceration be
served consecutively to a term of incarceration of 12 months or less that
was imposed in a previous proceeding by a court of this state upon
conviction of a felony, the defendant shall serve any remaining part of
the previously imposed term of incarceration in the legal and physical
custody of the Department of Corrections.
(2)(a) If the court imposes a sentence upon conviction of a felony
that includes a term of incarceration that is 12 months or less, the
court shall commit the defendant to the legal and physical custody of the
supervisory authority of the county in which the crime of conviction
occurred.
(b) Notwithstanding paragraph (a) of this subsection, when the
court imposes a sentence upon conviction of a felony that includes a term
of incarceration that is 12 months or less, the court shall commit the
defendant to the legal and physical custody of the Department of
Corrections if the court orders that the term of incarceration be served
consecutively to a term of incarceration that exceeds 12 months that was
imposed in a previous proceeding or in the same proceeding by a court of
this state upon conviction of a felony.
(3) After assuming custody of the convicted person the Department
of Corrections may transfer inmates from one correctional facility to
another such facility for the purposes of diagnosis and study,
rehabilitation and treatment, as best seems to fit the needs of the
inmate and for the protection and welfare of the community and the inmate.
(4) If the court imposes a sentence of imprisonment upon conviction
of a misdemeanor, it shall commit the defendant to the custody of the
supervisory authority of the county in which the crime of conviction
occurred.
(5)(a) When a person under 18 years of age at the time of
committing the offense and under 20 years of age at the time of
sentencing is committed to the Department of Corrections under ORS
137.707, the Department of Corrections shall transfer the physical
custody of the person to the Oregon Youth Authority as provided in ORS
420.011 if:
(A) The person will complete the sentence imposed before the person
attains 25 years of age; or
(B) The Department of Corrections and the Oregon Youth Authority
determine that, because of the person’s age, immaturity, mental or
emotional condition or risk of physical harm to the person, the person
should not be incarcerated initially in a Department of Corrections
institution.
(b) A person placed in the custody of the Oregon Youth Authority
under this subsection shall be returned to the physical custody of the
Department of Corrections whenever the Director of the Oregon Youth
Authority, after consultation with the Department of Corrections,
determines that the conditions or circumstances that warranted the
transfer of custody under this subsection are no longer present.
(6)(a) When a person under 18 years of age at the time of
committing the offense and under 20 years of age at the time of
sentencing is committed to the legal and physical custody of the
Department of Corrections or the supervisory authority of a county
following waiver under ORS 419C.349, 419C.352, 419C.364 or 419C.370 or
sentencing under ORS 137.707 (5)(b)(A) or (7)(b) or 137.712, the
Department of Corrections or the supervisory authority of a county shall
transfer the person to the physical custody of the Oregon Youth Authority
for placement as provided in ORS 420.011 (3). The terms and conditions of
the person’s incarceration and custody are governed by ORS 420A.200 to
420A.206.
(b) When a person under 16 years of age is waived under ORS
419C.349, 419C.352, 419C.364 or 419C.370 and subsequently is sentenced to
a term of imprisonment in the county jail, the sheriff shall transfer the
person to a youth correction facility for physical custody as provided in
ORS 420.011 (3).
(7) If the Director of the Oregon Youth Authority concurs in the
decision, the Department of Corrections or the supervisory authority of a
county shall transfer the physical custody of a person committed to the
Department of Corrections or the supervisory authority of the county
under subsection (1) or (2) of this section to the Oregon Youth Authority
as provided in ORS 420.011 (2) if:
(a) The person was at least 18 years of age but under 20 years of
age at the time of committing the felony for which the person is being
sentenced to a term of incarceration;
(b) The person is under 20 years of age at the time of commitment
to the Department of Corrections or the supervisory authority of the
county;
(c) The person has not been committed previously to the legal and
physical custody of the Department of Corrections or the supervisory
authority of a county;
(d) The person has not been convicted and sentenced to a term of
incarceration for the commission of a felony in any other state;
(e) The person will complete the term of incarceration imposed
before the person attains 25 years of age;
(f) The person is likely in the foreseeable future to benefit from
the rehabilitative and treatment programs administered by the Oregon
Youth Authority;
(g) The person does not pose a substantial danger to Oregon Youth
Authority staff or persons in the custody of the Oregon Youth Authority;
and
(h) At the time of the proposed transfer, no more than 50 persons
are in the physical custody of the Oregon Youth Authority under this
subsection.
(8) Notwithstanding the provisions of subsections (5)(a)(A) or (7)
of this section, the department or the supervisory authority of a county
may not transfer the physical custody of the person under subsection
(5)(a)(A) or (7) of this section if the Director of the Oregon Youth
Authority, after consultation with the Department of Corrections or the
supervisory authority of a county, determines that, because of the
person’s age, mental or emotional condition or risk of physical harm to
other persons, the person should not be incarcerated in a youth
correction facility. [1967 c.585 §4; 1971 c.743 §325; 1973 c.836 §262;
1985 c.631 §5; 1987 c.320 §30; 1993 c.33 §299; 1993 c.546 §118; 1995
c.422 §§57,57a; 1995 c.423 §12a; 1999 c.109 §5](Community Service) As used in ORS
137.126 to 137.131:
(1) “Community service” means uncompensated labor for an agency
whose purpose is to enhance physical or mental stability, environmental
quality or the social welfare.
(2) “Agency” means a nonprofit organization or public body agreeing
to accept community service from offenders and to report on the progress
of ordered community service to the court or its delegate. [1981 c.551 §2](1) A judge may sentence an offender to
community service either as an alternative to incarceration or fine or
probation, or as a condition of probation. Prior to such order of
community service the offender must consent to donate labor for the
welfare of the public. The court or its delegate may select community
service tasks that are within the offender’s capabilities and are to be
performed within a reasonable length of time during hours the offender is
not working or attending school.
(2) Failure to perform a community service sentence may be grounds
for revocation of probation or contempt of court. [1981 c.551 §§3,5] The length of a
community service sentence shall be within these limits:
(1) For a violation, not more than 48 hours.
(2) For a misdemeanor other than driving under the influence of
intoxicants in violation of ORS 813.010, not more than 160 hours.
(3)(a) For a felony committed prior to November 1, 1993, not more
than 500 hours.
(b) For a felony committed on or after November 1, 1993, as
provided in the rules of the Oregon Criminal Justice Commission.
(4) For a violation of driving under the influence of intoxicants
under ORS 813.010, not less than 80 hours or more than 250 hours. [1981
c.551 §4; 1983 c.721 §1; 1985 c.16 §447; 1993 c.692 §3; 1999 c.1051 §68a](1) The court shall impose community service as a
condition of a probation sentence when a person is convicted of criminal
mischief and the conduct engaged in consists of defacing property by
creating graffiti unless the sentence includes incarceration in a county
jail or a state correctional institution.
(2) The community service must include removing graffiti, either
those that the defendant created or those created by another, or both.
(3) If the defendant does not consent to donate labor as required
by ORS 137.128, the period of community service must be served under the
supervision and control of the Department of Corrections. [1995 c.615 §5](Forfeiture of Weapons)(1) In addition to and not in lieu of any other
sentence it may impose, a court shall require a defendant convicted under
ORS 164.365, 166.663, 167.315, 498.056 or 498.146 or other state, county
or municipal laws, for an act involving or connected with injuring,
damaging, mistreating or killing a livestock animal, to forfeit any
rights in weapons used in connection with the act underlying the
conviction.
(2) In addition to and not in lieu of any other sentence it may
impose, a court shall revoke any hunting license possessed by a defendant
convicted as described in subsection (1) of this section.
(3) The State Fish and Wildlife Director shall refuse to issue a
hunting license to a defendant convicted as described under subsection
(1) of this section for a period of two years following the conviction.
(4) As used in this section, “livestock animal” has the meaning
given in ORS 164.055. [1999 c.766 §1; 2001 c.666 §§27,39; 2005 c.830 §21]Note: 137.138 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(Post-Judgment Procedures)Whenever it appears to the court that there is no sufficient
jail of the proper county, as provided in ORS 137.330, suitable for the
confinement of the defendant, the court may order the confinement of the
defendant in the jail of an adjoining county or, if there is no
sufficient and suitable jail in the adjoining county, then in the jail of
any county in the state. [Amended by 1973 c.836 §263; 1987 c.550 §3] When judgment in a
criminal action is given, the clerk shall enter the same in the register.
If the judgment is upon a determination of conviction of an offense, the
clerk shall state briefly in the register the offense for which the
defendant was convicted. [Amended by 1959 c.638 §19; 1973 c.836 §264;
1985 c.540 §36; 1997 c.801 §65b]Whenever a judgment in a criminal action
will effect the immediate release of a defendant by discharge, probation,
sentence to time served, or otherwise, the court shall cause the prompt
delivery of a copy of the judgment to the sheriff no later than three
calendar days after the judgment is entered. [1987 c.251 §3; 1991 c.111
§15; 1997 c.801 §65c] Notwithstanding
ORS 82.010, judgments in criminal actions bear interest at the rate of
12.5 percent per annum from the date of entry of the judgment for the
first five years and four percent per annum thereafter. The clerk of the
court shall calculate interest on each category of monetary obligation
established by ORS 137.295 for the purpose of distribution of the
interest in the manner provided in ORS 137.295. Interest shall accrue
monthly on the first day of each month, beginning with the first day of
the second full calendar month after the monetary obligation first
becomes due. [1999 c.1064 §2; 2005 c.618 §7]Note: Section 5, chapter 1064, Oregon Laws 1999, provides:
Sec. 5. (1) ORS 1.190, 1.192 and 137.183 and the amendments to ORS
137.295 by section 1, chapter 1064, Oregon Laws 1999, become operative on
July 1, 2007.
(2) ORS 137.183 and the amendments to ORS 137.295 by section 1,
chapter 1064, Oregon Laws 1999, apply only to judgments entered on or
after July 1, 2007. [1999 c.1064 §5; 2003 c.394 §1]Note: 137.183 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1) If it is found
by any justice or court trying the action or hearing the proceeding that
the prosecution is malicious or without probable cause, that fact shall
be entered upon record in the action or proceeding by the justice or
court.
(2) Upon making the entry prescribed in subsection (1) of this
section, the justice or court shall immediately render judgment against
the complainant for the costs and disbursements of the action or
proceeding.
(3) As used in this section “complainant” means every person who
voluntarily appears before any magistrate or grand jury to prosecute any
person in a criminal action, either for a misdemeanor or felony. [Amended
by 1959 c.426 §3] In every criminal
proceeding, the clerk shall attach together and file in the office of the
clerk, in the order of their filing, all the original papers filed in the
court, whether before or after judgment, including but not limited to the
indictment and other pleadings, demurrers, motions, affidavits,
stipulations, orders, the judgment and the notice of appeal and
undertaking on appeal, if any. [1959 c.558 §33 (enacted in lieu of
137.190)](1)(a) At any time after the lapse of three
years from the date of pronouncement of judgment, any defendant who has
fully complied with and performed the sentence of the court and whose
conviction is described in subsection (5) of this section by motion may
apply to the court wherein that conviction was entered for entry of an
order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of any
arrest, if no accusatory instrument was filed, or at any time after an
acquittal or a dismissal of the charge, the arrested person may apply to
the court which would have jurisdiction over the crime for which the
person was arrested, for entry of an order setting aside the record of
such arrest. For the purpose of computing the one-year period, time
during which the arrested person has secreted himself or herself within
or without the state shall not be included.
(2)(a) A copy of the motion and a full set of the defendant’s
fingerprints shall be served upon the office of the prosecuting attorney
who prosecuted the crime or violation, or who had authority to prosecute
the charge if there was no accusatory instrument filed, and opportunity
be given to contest the motion. The fingerprint card with the notation
“motion for setting aside conviction” or “motion for setting aside arrest
record” as the case may be, shall be forwarded to the Department of State
Police Bureau of Criminal Identification. Information resulting from the
fingerprint search along with the fingerprint card shall be returned to
the prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a motion
to set aside a conviction under this section, the prosecuting attorney
shall provide a copy of the motion and notice of the hearing date to the
victim, if any, of the crime by mailing a copy of the motion and notice
to the victim’s last-known address.
(c) When a person makes a motion under subsection (1)(a) of this
section, the person must pay a fee of $80. The person shall attach a
certified check payable to the Department of State Police in the amount
of $80 to the fingerprint card that is served upon the prosecuting
attorney. The office of the prosecuting attorney shall forward the check
with the fingerprint card to the Department of State Police Bureau of
Criminal Identification.
(3) Upon hearing the motion, the court may require the filing of
such affidavits and may require the taking of such proofs as it deems
proper. The court shall allow the victim to make a statement at the
hearing. Except as otherwise provided in subsection (11) of this section,
if the court determines that the circumstances and behavior of the
applicant from the date of conviction, or from the date of arrest as the
case may be, to the date of the hearing on the motion warrant setting
aside the conviction, or the arrest record as the case may be, it shall
enter an appropriate order which shall state the original arrest charge
and the conviction charge, if any and if different from the original,
date of charge, submitting agency and disposition. The order shall
further state that positive identification has been established by the
bureau and further identified as to state bureau number or submitting
agency number. Upon the entry of such an order, the applicant for
purposes of the law shall be deemed not to have been previously
convicted, or arrested as the case may be, and the court shall issue an
order sealing the record of conviction and other official records in the
case, including the records of arrest whether or not the arrest resulted
in a further criminal proceeding.
(4) The clerk of the court shall forward a certified copy of the
order to such agencies as directed by the court. A certified copy must be
sent to the Department of Corrections when the person has been in the
custody of the Department of Corrections. Upon entry of such an order,
such conviction, arrest or other proceeding shall be deemed not to have
occurred, and the applicant may answer accordingly any questions relating
to their occurrence.
(5) The provisions of subsection (1)(a) of this section apply to a
conviction of:
(a) A Class C felony, except for criminal mistreatment in the first
degree under ORS 163.205 when it would constitute child abuse, as defined
in ORS 419B.005, or any sex crime.
(b) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
(c) A crime punishable as either a felony or a misdemeanor, in the
discretion of the court, except for:
(A) Any sex crime; and
(B) The following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS 163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575 (1)(a).
(d) A misdemeanor, including a violation of a municipal ordinance,
for which a jail sentence may be imposed, except for endangering the
welfare of a minor under ORS 163.575 (1)(a) when it would constitute
child abuse, as defined in ORS 419B.005, or any sex crime.
(e) A violation, whether under state law or local ordinance.
(f) An offense committed before January 1, 1972, which if committed
after that date would be:
(A) A Class C felony, except for any sex crime or for the following
crimes when they would constitute child abuse as defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS 163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575 (1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in the
discretion of the court, except for any sex crime or for the following
crimes when they would constitute child abuse as defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS 163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575 (1)(a).
(C) A misdemeanor, except for endangering the welfare of a minor
under ORS 163.575 (1)(a) when it would constitute child abuse, as defined
in ORS 419B.005, or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the provisions
of subsection (1) of this section do not apply to:
(a) A person convicted of, or arrested for, a state or municipal
traffic offense;
(b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of this
section, of any other offense, excluding motor vehicle violations,
whether or not the other conviction is for conduct associated with the
same criminal episode that caused the arrest or conviction that is sought
to be set aside. Notwithstanding subsection (1) of this section, a
conviction which has been set aside under this section shall be
considered for the purpose of determining whether this paragraph is
applicable; or
(c) A person who at the time the motion authorized by subsection
(1) of this section is pending before the court is under charge of
commission of any crime.
(7) The provisions of subsection (1)(b) of this section do not
apply to a person arrested within the three-year period immediately
preceding the filing of the motion for any offense, excluding motor
vehicle violations, and excluding arrests for conduct associated with the
same criminal episode that caused the arrest that is sought to be set
aside.
(8) The provisions of subsection (1) of this section apply to
convictions and arrests which occurred before, as well as those which
occurred after, September 9, 1971. There shall be no time limit for
making such application.
(9) For purposes of any civil action in which truth is an element
of a claim for relief or affirmative defense, the provisions of
subsection (3) of this section providing that the conviction, arrest or
other proceeding be deemed not to have occurred shall not apply and a
party may apply to the court for an order requiring disclosure of the
official records in the case as may be necessary in the interest of
justice.
(10) Upon motion of any prosecutor or defendant in a case involving
records sealed under this section, supported by affidavit showing good
cause, the court with jurisdiction may order the reopening and disclosure
of any records sealed under this section for the limited purpose of
assisting the investigation of the movant. However, such an order shall
have no other effect on the orders setting aside the conviction or the
arrest record.
(11) Unless the court makes written findings by clear and
convincing evidence that granting the motion would not be in the best
interests of justice, the court shall grant the motion and enter an order
as provided in subsection (3) of this section if the defendant has been
convicted of one of the following crimes and is otherwise eligible for
relief under this section:
(a) Abandonment of a child, ORS 163.535.
(b) Attempted assault in the second degree, ORS 163.175.
(c) Assault in the third degree, ORS 163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the first degree, ORS 163.205.
(f) Attempted escape in the first degree, ORS 162.165.
(g) Incest, ORS 163.525, if the victim was at least 18 years of age.
(h) Intimidation in the first degree, ORS 166.165.
(i) Attempted kidnapping in the second degree, ORS 163.225.
(j) Criminally negligent homicide, ORS 163.145.
(k) Attempted robbery in the second degree, ORS 164.405.
(L) Robbery in the third degree, ORS 164.395.
(m) Supplying contraband, ORS 162.185.
(n) Unlawful use of a weapon, ORS 166.220.
(12) As used in this section, “sex crime” has the meaning given
that term in ORS 181.594. [1971 c.434 §2; 1973 c.680 §3; 1973 c.689 §1a;
1973 c.836 §265; 1975 c.548 §10; 1975 c.714 §2; 1977 c.286 §1; 1983 c.556
§1; 1983 c.740 §17; 1987 c.320 §31; 1987 c.408 §1; 1987 c.864 §6; 1989
c.774 §1; 1991 c.830 §6; 1993 c.546 §98; 1993 c.664 §2; 1995 c.429 §9;
1995 c.743 §1; 1999 c.79 §1](Alcoholic or Drug-Dependent Person)(1)
After a defendant has been convicted of a crime, the court may cause the
defendant to be evaluated to determine if the defendant is an alcoholic
or a drug-dependent person, as those terms are defined in ORS 430.306.
The evaluation shall be conducted by an agency or organization designated
under subsection (2) of this section.
(2) The court shall designate agencies or organizations to perform
the evaluations required under subsection (1) of this section. The
designated agencies or organizations must meet the standards set by the
Department of Human Services to perform the evaluations for drug
dependency and must be approved by the department. Wherever possible, a
court shall designate agencies or organizations to perform the
evaluations that are separate from those that may be designated to carry
out a program of treatment for alcohol or drug dependency. [1991 c.630 §1]Note: 137.227 to 137.229 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 137 by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) When a defendant is sentenced for a crime, the court
may enter a finding that the defendant is an alcoholic or a
drug-dependent person, as those terms are defined in ORS 430.306. The
finding may be based upon any evidence before the court, including, but
not limited to, the facts of the case, stipulations of the parties and
the results of any evaluation conducted under ORS 137.227.
(2) When the court finds that the defendant is an alcoholic or a
drug-dependent person, the court, when it sentences the defendant to a
term of imprisonment, shall direct the Department of Corrections to place
the defendant in an appropriate alcohol or drug treatment program, to the
extent that resources are available. The alcohol or drug treatment
program shall meet the standards promulgated by the Department of Human
Services pursuant to ORS 430.357. [1991 c.630 §§2,3; 2005 c.271 §1]Note: See note under 137.227. The Department of
Corrections, to the extent that funds are available, shall expand
existing and establish new treatment programs for alcohol and drug
dependency. [1991 c.630 §4]Note: See note under 137.227.(Effects of Felony Conviction)Any person convicted
of a felony prior to August 9, 1961, and subsequently discharged from
probation, parole or imprisonment prior to or after August 9, 1961, is
hereby restored to the political rights of the person. [1961 c.412 §4] No
conviction of any person for crime works any forfeiture of any property,
except in cases where the same is expressly provided by law; but in all
cases of the commission or attempt to commit a felony, the state has a
lien, from the time of such commission or attempt, upon all the property
of the defendant for the purpose of satisfying any judgment which may be
given against the defendant for any fine on account thereof and for the
costs and disbursements in the proceedings against the defendant for such
crime; provided, however, such lien shall not attach to such property as
against a purchaser or incumbrancer in good faith, for value, whose
interest in the property was acquired before the entry of the judgment
against the defendant. [Formerly 137.460; 2003 c.576 §191]Except as otherwise provided by law, a person convicted of a
felony does not suffer civil death or disability, or sustain loss of
civil rights or forfeiture of estate or property, but retains all of the
rights of the person, political, civil and otherwise, including, but not
limited to, the right to vote, to hold, receive and transfer property, to
enter into contracts, including contracts of marriage, and to maintain
and defend civil actions, suits or proceedings. [1975 c.781 §1](1) In any felony case, when the court sentences
the defendant to a term of imprisonment in the custody of the Department
of Corrections and execution of the sentence is not suspended, or
execution is suspended upon condition that the defendant serve a term of
imprisonment in the county jail, the defendant is deprived of all rights
and privileges described in subsection (3) of this section from the date
of sentencing until:
(a) The defendant is discharged or paroled from imprisonment; or
(b) The defendant’s conviction is set aside.
(2) In any felony case, when the court sentences the defendant to a
term of imprisonment in the custody of the Department of Corrections and
execution of the sentence is suspended upon any condition other than
imprisonment in the county jail, if the sentence of probation is revoked
and the suspended portion of the sentence is ordered executed, the
defendant is deprived of the rights and privileges described in
subsection (3) of this section from the date the sentence is ordered
executed until:
(a) The defendant is discharged or paroled from imprisonment; or
(b) The defendant’s conviction is set aside.
(3) The rights and privileges of which a person may be deprived
under this section are:
(a) Holding a public office or an office of a political party or
becoming or remaining a candidate for either office;
(b) Holding a position of private trust;
(c) Acting as a juror; or
(d) Exercising the right to vote.
(4) If the court under subsection (1) of this section temporarily
stays execution of sentence for any purpose other than probation, the
defendant nonetheless is sentenced for purposes of subsection (1) of this
section.
(5) A person convicted of any crime and serving a term of
imprisonment in any federal correctional institution in this state is
deprived of the rights to register to vote, update a registration or vote
in any election in this state from the date of sentencing until:
(a) The person is discharged or paroled from imprisonment; or
(b) The person’s conviction is set aside.
(6) The county clerk or county official in charge of elections in
any county may cancel the registration of any person serving a term of
imprisonment in any federal correctional institution in this state.
(7) Except as otherwise provided in ORS 10.030, the rights and
privileges withdrawn by this section are restored automatically upon
discharge or parole from imprisonment, but in the case of parole shall be
automatically withdrawn upon a subsequent imprisonment for violation of
the terms of the parole. [1983 c.515 §2 (enacted in lieu of 137.280);
1987 c.320 §32; 1993 c.14 §4; 1997 c.313 §10; 1999 c.499 §1] ORS
137.275 to 137.285 do not deprive the Director of the Department of
Corrections, or the director’s authorized agents, of the authority to
regulate the manner in which these retained rights of convicted persons
may be exercised as is reasonably necessary for the control of the
conduct and conditions of confinement of convicted persons in the custody
of the Department of Corrections. [1975 c.781 §3; 1979 c.284 §116; 1987
c.320 §33](Unitary Assessment) (1) In all cases of
conviction for the commission of a crime or violation, excluding parking
violations, the trial court, whether a circuit, justice or municipal
court, shall impose upon the defendant, in addition to any other monetary
obligation imposed, a unitary assessment under this section. The unitary
assessment shall also be imposed by the circuit court and county court in
juvenile cases under ORS 419C.005 (1). The unitary assessment is a penal
obligation in the nature of a fine and shall be in an amount as follows:
(a) $107 in the case of a felony.
(b) $67 in the case of a misdemeanor.
(c) $97 in the case of a conviction for driving under the influence
of intoxicants.
(d) $37 in the case of a violation as described in ORS 153.008.
(2) The unitary assessment shall include, in addition to the amount
in subsection (1) of this section:
(a) $42 if the defendant was driving a vehicle that requires a
commercial driver license to operate and the conviction was for violating:
(A) ORS 811.100 by driving at a speed at least 10 miles per hour
greater than is reasonable and prudent under the circumstances; or
(B) ORS 811.111 (1)(b) by driving at least 65 miles per hour; and
(b) $500 if the crime of conviction is a crime found in ORS chapter
163.
(3) Subject to subsection (4) of this section, the court in any
case may waive payment of the unitary assessment, in whole or in part,
if, upon consideration, the court finds that payment of the assessment or
portion thereof would impose upon the defendant a total monetary
obligation inconsistent with justice in the case. In making its
determination under this subsection, the court shall consider:
(a) The financial resources of the defendant and the burden that
payment of the unitary assessment will impose, with due regard to the
other obligations of the defendant; and
(b) The extent to which such burden can be alleviated by allowing
the defendant to pay the monetary obligations imposed by the court on an
installment basis or on other conditions to be fixed by the court.
(4) If a defendant is convicted of an offense, the court may waive
all or part of the unitary assessment required under subsections (1) and
(2)(a) of this section only if the court imposes no fine on the
defendant. [1987 c.905 §1; 1991 c.460 §14; 1993 c.33 §300; 1993 c.637 §1;
1993 c.770 §§1,3; 1995 c.555 §1; 1997 c.872 §27; 1999 c.1051 §127; 1999
c.1056 §1d; 1999 c.1095 §6; 2003 c.737 §112; 2003 c.819 §11]Note: The amendments to 137.290 by section 21, chapter 843, Oregon
Laws 2005, become operative July 1, 2007. See section 38, chapter 843,
Oregon Laws 2005. The text that is operative on and after July 1, 2007,
is set forth for the user’s convenience.
137.290. (1) In all cases of conviction for the commission of a
crime or violation, excluding parking violations, the trial court,
whether a circuit, justice or municipal court, shall impose upon the
defendant, in addition to any other monetary obligation imposed, a
unitary assessment under this section. Except when the person
successfully asserts the defense set forth in ORS 419C.522, the unitary
assessment shall also be imposed by the circuit court and county court in
juvenile cases under ORS 419C.005 (1). The unitary assessment is a penal
obligation in the nature of a fine and shall be in an amount as follows:
(a) $107 in the case of a felony.
(b) $67 in the case of a misdemeanor.
(c) $97 in the case of a conviction for driving under the influence
of intoxicants.
(d) $37 in the case of a violation as described in ORS 153.008.
(2) The unitary assessment shall include, in addition to the amount
in subsection (1) of this section:
(a) $42 if the defendant was driving a vehicle that requires a
commercial driver license to operate and the conviction was for violating:
(A) ORS 811.100 by driving at a speed at least 10 miles per hour
greater than is reasonable and prudent under the circumstances; or
(B) ORS 811.111 (1)(b) by driving at least 65 miles per hour; and
(b) $500 if the crime of conviction is a crime found in ORS chapter
163.
(3) Subject to subsection (4) of this section, the court in any
case may waive payment of the unitary assessment, in whole or in part,
if, upon consideration, the court finds that payment of the assessment or
portion thereof would impose upon the defendant a total monetary
obligation inconsistent with justice in the case. In making its
determination under this subsection, the court shall consider:
(a) The financial resources of the defendant and the burden that
payment of the unitary assessment will impose, with due regard to the
other obligations of the defendant; and
(b) The extent to which such burden can be alleviated by allowing
the defendant to pay the monetary obligations imposed by the court on an
installment basis or on other conditions to be fixed by the court.
(4) If a defendant is convicted of an offense, the court may waive
all or part of the unitary assessment required under subsections (1) and
(2)(a) of this section only if the court imposes no fine on the defendant.Note: 137.290 to 137.300 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 137 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.All fines, costs, assessments, restitution,
compensatory fines and other monetary obligations imposed upon a
convicted person in a circuit, justice or municipal court, shall
constitute a single obligation on the part of the convicted person. The
clerk shall subdivide the total obligation as provided in ORS 137.295
according to the various component parts of the obligation and shall
credit and distribute accordingly, among those subdivisions, all moneys
received. [1987 c.905 §2]Note: See second note under 137.290.(1) When a defendant convicted of a crime or violation
in the circuit, justice or municipal court, or allowed diversion in such
a case, makes a payment of money to be credited against monetary
obligations imposed as a result of that conviction or diversion, the
clerk shall distribute the payment as provided in this section.
(2) There are four categories of monetary obligations. The
categories are as follows:
(a) Category 1 consists of compensatory fines under ORS 137.101.
(b) Category 2 consists of restitution as defined in ORS 137.103
and restitution under ORS 419C.450 and a monetary obligation imposed
under ORS 811.706.
(c) Category 3 consists of the unitary assessment imposed under ORS
137.290, costs imposed under ORS 151.505 or 161.665 and those fines,
costs, forfeited security amounts and other monetary obligations payable
to the state or to the General Fund of the state in criminal and
quasi-criminal cases for which moneys the law does not expressly provide
other disposition.
(d) Category 4 consists of monetary obligations imposed upon the
defendant as a result of the conviction, but which do not fall under
category 1, category 2 or category 3 of the obligation categories. These
include, but are not limited to, fines and other monetary obligations
that the law expressly directs be paid to an agency, person or political
subdivision of the state, and any other obligation to reimburse for
payment of a reward under ORS 131.897.
(3) So long as there remains unpaid any obligation under category
1, the clerk shall credit toward category 1 all of each payment received.
(4) After the total obligation has been credited under category 1,
then so long as there remains unpaid any obligation under both categories
2 and 3, the clerk shall credit toward each such category 50 percent of
each payment received.
(5) The clerk shall monthly transfer the moneys credited under
category 1 and under category 2 to the victims for whose benefit moneys
under that category were ordered paid. If there are multiple victims for
whose benefit moneys have been ordered paid under category 2, the clerk
shall first transfer moneys credited under category 2 to the victim, as
defined in ORS 137.103 (4)(a). When the moneys due the victim, as defined
in ORS 137.103 (4)(a), have been fully paid, the clerk shall transfer
moneys credited under category 2 to the Criminal Injuries Compensation
Account if moneys have been ordered paid to the account under category 2.
When the moneys due the account have been fully paid, the clerk shall
transfer moneys credited under category 2 to any other victims, as
defined in ORS 137.103 (4)(b) or (d), for whose benefit moneys under that
category were ordered paid in proportion to the amounts ordered. The
clerk of a circuit court shall monthly transfer the moneys credited under
category 3 as directed by the State Court Administrator for deposit in
the State Treasury to the credit of the Criminal Fine and Assessment
Account established under ORS 137.300. The clerk of a justice or
municipal court shall monthly transfer the moneys credited under category
3 to the Department of Revenue as provided in ORS 305.830.
(6) When the entire amount owing for purposes of either category 2
or category 3 has been credited, further payments by the defendant shall
be credited by the clerk entirely to the unpaid balance of whichever of
those categories remains unpaid, until both category 2 and category 3
have been entirely paid.
(7) When category 1, category 2 and category 3 have been entirely
paid and any obligation remains owing under category 4, the clerk shall
credit further payments by the defendant to the obligations under
category 4 and shall monthly transfer the moneys so received to the
appropriate recipient, giving first priority to counties and cities
entitled to revenues generated by prosecutions in justice and municipal
courts and giving last priority to persons entitled to moneys as
reimbursement for reward under ORS 131.897.
(8) Notwithstanding subsection (5) of this section, the clerk of a
circuit court shall monthly transfer the moneys attributable to parking
violations to the State Treasurer for deposit in the General Fund.
(9) The clerk of a justice or municipal court must make the
transfers required by this section not later than the last day of the
month immediately following the month in which a payment is made. [1987
c.905 §3; 1991 c.460 §13; 1993 c.33 §301; 1995 c.782 §3; 1997 c.761 §10;
1999 c.1051 §128; 2001 c.823 §22; 2003 c.687 §2; 2005 c.564 §4]Note: The amendments to 137.295 by section 1, chapter 1064, Oregon
Laws 1999, become operative July 1, 2007, and apply only to judgments
entered on or after July 1, 2007. See section 5, chapter 1064, Oregon
Laws 1999, as amended by section 1, chapter 394, Oregon Laws 2003. The
text that is operative on and after July 1, 2007, including amendments by
section 23, chapter 823, Oregon Laws 2001, section 3, chapter 687, Oregon
Laws 2003, and section 5, chapter 564, Oregon Laws 2005, is set forth for
the user’s convenience.
137.295. (1) When a defendant convicted of a crime or violation in
the circuit, justice or municipal court, or allowed diversion in such a
case, makes a payment of money to be credited against monetary
obligations imposed as a result of that conviction or diversion, the
clerk shall distribute the payment as provided in this section.
(2) There are four categories of monetary obligations. The
categories are as follows:
(a) Category 1 consists of compensatory fines under ORS 137.101.
(b) Category 2 consists of restitution as defined in ORS 137.103
and restitution under ORS 419C.450 and a monetary obligation imposed
under ORS 811.706.
(c) Category 3 consists of the unitary assessment imposed under ORS
137.290, costs imposed under ORS 151.505 or 161.665 and those fines,
costs, forfeited security amounts and other monetary obligations payable
to the state or to the General Fund of the state in criminal and
quasi-criminal cases for which moneys the law does not expressly provide
other disposition.
(d) Category 4 consists of monetary obligations imposed upon the
defendant as a result of the conviction, but which do not fall under
category 1, category 2 or category 3 of the obligation categories. These
include, but are not limited to, fines and other monetary obligations
that the law expressly directs be paid to an agency, person or political
subdivision of the state, and any other obligation to reimburse for
payment of a reward under ORS 131.897.
(3) As long as there remains unpaid any obligation under category
1, including any interest accrued on that obligation, the clerk shall
credit toward category 1 all of each payment received.
(4) After the total obligation has been credited under category 1,
then as long as there remains unpaid any obligation under both categories
2 and 3, including any interest accrued on those obligations, the clerk
shall credit toward each such category 50 percent of each payment
received.
(5) The clerk shall monthly transfer the principal amount of the
moneys credited under category 1 and under category 2, and all interest
that has accrued on those principal amounts, to the victims for whose
benefit moneys under that category were ordered paid. If there are
multiple victims for whose benefit moneys have been ordered paid under
category 2, the clerk shall first transfer moneys credited under category
2 to the victim, as defined in ORS 137.103 (4)(a). When the moneys due
the victim, as defined in ORS 137.103 (4)(a), have been fully paid, the
clerk shall transfer moneys credited under category 2 to the Criminal
Injuries Compensation Account if moneys have been ordered paid to the
account under category 2. When the moneys due the account have been fully
paid, the clerk shall transfer moneys credited under category 2 to any
other victims, as defined in ORS 137.103 (4)(b) or (d), for whose benefit
moneys under that category were ordered paid in proportion to the amounts
ordered. The clerk of a circuit court shall monthly transfer the
principal amount of the moneys credited under category 3 as directed by
the State Court Administrator for deposit in the State Treasury to the
credit of the Criminal Fine and Assessment Account established under ORS
137.300. The clerk of a justice or municipal court shall monthly transfer
the principal amount of the moneys credited under category 3 to the
Department of Revenue as provided in ORS 305.830. The clerk shall
transfer all interest on the principal amount of the moneys credited
under category 3 to the State Court Administrator for deposit in the
Court Facilities Account established under ORS 1.190.
(6) When the entire amount owing for purposes of either category 2
or category 3 has been credited, including any interest that has accrued
on the amount, further payments by the defendant shall be credited by the
clerk entirely to the unpaid balance of whichever of those categories
remains unpaid, until both category 2 and category 3 have been entirely
paid.
(7) When category 1, category 2 and category 3 have been entirely
paid and any obligation remains owing under category 4, the clerk shall
credit further payments by the defendant to the obligations under
category 4 and shall monthly transfer the principal amount of the moneys
so received to the appropriate recipient, giving first priority to
counties and cities entitled to revenues generated by prosecutions in
justice and municipal courts and giving last priority to persons entitled
to moneys as reimbursement for reward under ORS 131.897. The clerk shall
transfer all interest on the principal amount of the moneys credited
under category 4 to the agency, person or political subdivision of the
state entitled to the principal amount. All interest on monetary
obligations owing to the state under category 4 shall be transferred to
the State Court Administrator for deposit in the Court Facilities Account
established under ORS 1.190.
(8) Notwithstanding subsection (5) of this section, the clerk of a
circuit court shall monthly transfer the moneys attributable to parking
violations to the State Treasurer for deposit in the General Fund.
(9) The clerk of a justice or municipal court must make the
transfers required by this section not later than the last day of the
month immediately following the month in which a payment is made.Note: See second note under 137.290. (1) The
Criminal Fine and Assessment Account is established in the General Fund
of the State Treasury. All moneys in the account are appropriated
continuously to be distributed by the Department of Revenue as provided
in subsection (2) of this section. The Department of Revenue shall keep a
record of moneys transferred into and out of the account. The Department
of Revenue shall report monthly to the Attorney General the amount of
moneys received from the state courts in each county and from each city
court.
(2) For biennia beginning on and after July 1, 2003, the Department
of Revenue shall distribute moneys in the account to the General Fund to
be used for general governmental expenses and to the Criminal Fine and
Assessment Public Safety Fund established in ORS 137.302 according to
allocations made by the Legislative Assembly and as necessary under ORS
137.302 (5).
(3) The Department of Revenue shall establish by rule a process for
distributing available moneys in the Criminal Fine and Assessment Account.
(4) The Department of Justice shall report monthly to the
Department of Revenue the amount of moneys ordered to be applied to child
support under ORS 135.280. [1987 c.905 §6; 2001 c.829 §§1,1a]Note: The amendments to 137.300 by section 2, chapter 700, Oregon
Laws 2005, take effect July 1, 2007. See section 10, chapter 700, Oregon
Laws 2005. The text that is effective on and after July 1, 2007, is set
forth for the user’s convenience.
137.300. (1) The Criminal Fine and Assessment Account is
established in the General Fund of the State Treasury. All moneys in the
account are continuously appropriated to the Department of Revenue to be
distributed by the Department of Revenue according to allocations made by
the Legislative Assembly. The Department of Revenue shall keep a record
of moneys transferred into and out of the account. The Department of
Revenue shall report monthly to the Attorney General the amount of moneys
received from the state courts in each county and from each city court.
(2) The Legislative Assembly shall allocate moneys in the account
according to the following priority:
(a) Public safety standards, training and facilities;
(b) Criminal injuries compensation and assistance to victims of
crime and children reasonably suspected of being victims of crime;
(c) Forensic services of the Oregon State Police including, but not
limited to, services of the State Medical Examiner; and
(d) Maintenance and operation of the Law Enforcement Data System.
(3) Moneys in the account may not be allocated for:
(a) The payment of debt service obligations; or
(b) Any purpose other than those listed in subsection (2) of this
section.
(4) The Department of Revenue shall deposit in the General Fund all
moneys remaining in the account after the distributions required by
subsections (1) and (2) of this section have been made.
(5) The Department of Revenue shall establish by rule a process for
distributing moneys in the account.
(6) The Department of Justice shall report monthly to the
Department of Revenue the amount of moneys ordered to be applied to child
support under ORS 135.280.Note: See second note under 137.290.Note: Section 1, chapter 779, Oregon Laws 2005, provides:
Sec. 1. Notwithstanding ORS 137.300, for the biennium beginning
July 1, 2005, the Department of Revenue shall distribute:
(1) 67.43 percent of the moneys in the Criminal Fine and Assessment
Account, reduced by the amount reported by the Department of Justice to
the Department of Revenue under ORS 137.300 (4), to the General Fund to
be used for general governmental expenses; and
(2) 32.57 percent of the moneys in the account to the Criminal Fine
and Assessment Public Safety Fund. [2005 c.779 §1] The Legislative Assembly finds that:
(1) Systems critical components of the Oregon criminal justice
system exist that require the highest priority considerations for funding
from the Criminal Fine and Assessment Account.
(2) The systems critical components of the Oregon criminal justice
system are interrelated and essential to the initiation and successful
conclusion of criminal investigations.
(3) The interests of victims of crime and other Oregonians are
advanced by the ability of the public safety community to respond
professionally to reports of criminal activity and to successfully
investigate criminal cases in a manner that protects the constitutional
rights of all Oregonians.
(4) The effective training of police officers, corrections
officers, parole and probation officers and other first responders
increases the likelihood that crimes will be solved quickly and that the
needs of victims of crime will be met.
(5) The collection of evidence at crime scenes, the forensic
processing of the evidence by qualified, well-trained technicians and the
work of medical examiners are critical statewide functions that allow all
Oregonians an equal opportunity to justice.
(6) The collection of criminal information such as that retained in
the Law Enforcement Data System enhances the ability of investigators to
identify criminals and the unnamed victims of violent crimes.
(7) Timely intervention on behalf of victims of crime through
effective assistance programs makes recovery from victimization possible
and is necessary to the well-being of Oregonians adversely affected by
violent crime. [2005 c.700 §1]Note: 137.301 takes effect July 1, 2007. See section 10, chapter
700, Oregon Laws 2005.Note: 137.301 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1)
The Criminal Fine and Assessment Public Safety Fund is established
separate and distinct from the General Fund. The Criminal Fine and
Assessment Public Safety Fund consists of moneys deposited in the fund
pursuant to ORS 137.300 (2). All moneys in the fund are continuously
appropriated to the Department of Revenue to be distributed according to
allocations made by the Legislative Assembly and as necessary under
subsection (5) of this section.
(2) The Legislative Assembly shall allocate moneys in the fund
according to the following priority:
(a) Public safety standards, training and facilities;
(b) Criminal injuries compensation and assistance to victims of
crime and children reasonably suspected of being victims of crime; and
(c) The Emergency Medical Services Enhancement Account established
under ORS 442.625.
(3) Moneys in the fund may not be allocated for any purpose other
than those listed in subsection (2) of this section.
(4) In making allocations under subsection (2) of this section, the
Legislative Assembly shall first allocate sufficient moneys to pay debt
service obligations authorized by prior sessions of the Legislative
Assembly, or by Emergency Board action, to be paid by moneys in the
Criminal Fine and Assessment Public Safety Fund.
(5) If there are insufficient moneys in the fund to enable the
department to distribute the full amount of the allocations made pursuant
to subsection (2) of this section, the department shall distribute moneys
to pay the debt service obligations described in subsection (4) of this
section before making any other distributions.
(6) Notwithstanding ORS 293.190, moneys in the fund that are in
excess of the distributions required by this section do not revert to the
General Fund but remain in the Criminal Fine and Assessment Public Safety
Fund and are available for future allocation under subsection (2) of this
section.
(7) The department shall establish by rule a process for
distributing available moneys in the Criminal Fine and Assessment Public
Safety Fund. [2001 c.829 §2]Note: 137.302 is repealed July 1, 2007. See sections 3 and 10,
chapter 700, Oregon Laws 2005.Note: 137.302 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(County Assessment) (1) The county treasurer
shall deposit 60 percent of the moneys received under ORS 137.309 (6),
(8) and (9) into the general fund of the county to be used for the
purpose of planning, operating and maintaining county juvenile and adult
corrections programs and facilities and drug and alcohol programs
approved by the Governor’s Council on Alcohol and Drug Abuse Programs.
Expenditure by the county of the funds described in this subsection shall
be made in a manner that is consistent with the approved community
corrections plan for that county; however, a county may not expend more
than 50 percent of the funds on the construction or operation of a county
jail. Prior to budgeting the funds described in this subsection, a county
shall consider any comments received from, and upon request shall consult
with, the governing body of a city that forwards assessments under ORS
137.307 (1991 Edition) concerning the proposed uses of the funds.
(2) The county treasurer shall deposit 40 percent of the moneys
received under ORS 137.309 (6), (8) and (9) into the county’s court
Note: 137.308 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1)
Except as provided in subsection (4) of this section, whenever a circuit
or municipal court or a justice of a justice court imposes a sentence of
a fine, term of imprisonment, probation or any combination thereof,
including a sentence imposed and thereafter suspended, as a penalty for
an offense as defined in ORS 161.505, excluding parking violations, an
assessment in addition to such sentence shall be collected.
(2) The assessment is not part of the penalty or in lieu of any
part thereof. The amount of the assessment shall be as follows:
(a) $5, when the fine or forfeiture is $5 to $14.99.
(b) $15, when the fine or forfeiture is $15 to $49.99.
(c) $18, when the fine or forfeiture is $50 to $99.99.
(d) $25, when the fine or forfeiture is $100 to $249.99.
(e) $30, when the fine or forfeiture is $250 to $499.99.
(f) $66, when the fine or forfeiture is $500 or more.
(3) Assessments imposed under subsections (1) to (5) of this
section shall be collected as provided in subsections (6) to (9) of this
section.
(4) The court is not required to impose the assessment, or a part
of the assessment, if it finds that the defendant is indigent or that
imposition of the assessment would constitute an undue hardship.
(5) Payment to a court shall not be credited to the assessment
described in subsections (1) to (5) of this section until all other
fines, fees and assessments ordered by the court have been paid.
(6) Except as provided in subsections (7) and (8) of this section,
amounts paid for the assessment imposed by this section must be
transferred by the court to the county treasurer of the county in which
the court is located not later than the last day of the month immediately
following the month in which the amounts are collected.
(7) Prior to making payment to the county treasurer as provided in
subsections (6) and (9) of this section, the clerk of a circuit,
municipal or justice court:
(a) Shall withhold and deposit in the State Treasury to the credit
of the State Court Facilities Security Account the following amounts:
(A) $3, when the assessment is $15.
(B) $4, when the assessment is $18.
(C) $5, when the assessment is $25.
(D) $6, when the assessment is $30.
(E) $7, when the assessment is $66.
(b) May withhold an amount equal to the reasonable costs incurred
by the clerk in collection and distribution of the assessment.
(8) Prior to making payment to the county treasurer as provided in
subsections (6) and (9) of this section, the clerk of a circuit,
municipal or justice court:
(a) Shall withhold and deposit in the State Treasury to the credit
of the Law Enforcement Medical Liability Account the following amounts:
(A) $1, when the assessment is $15 or $18.
(B) $2, when the assessment is $25 or $30.
(C) $5, when the assessment is $66.
(b) May withhold an amount equal to the reasonable costs incurred
by the clerk in collection and distribution of the assessment.
(9) A city that lies in more than one county shall pay the
assessments it collects to each county in proportion to the percent of
the population of the city that resides in each county. [1991 c.778
§§4,5; 1993 c.14 §6; 1993 c.196 §1; 1993 c.637 §§13,13a; 1999 c.1051
§254; 2003 c.687 §4; 2005 c.804 §6]EXECUTION OF JUDGMENT(Imprisonment)
(1) When a judgment has been pronounced, a certified copy of the entry
thereof in the register shall be forthwith furnished by the clerk to the
officer whose duty it is to execute the judgment; and no other warrant or
authority is necessary to justify or require its execution.
(2) The defendant may be arrested and detained in any county in the
state by any peace officer and held for the authorities from the county
to which the execution is directed. Time spent by the defendant in such
detention shall be credited towards the term specified in the judgment.
[Amended by 1961 c.358 §1; 1967 c.372 §4; 1985 c.540 §37]Whenever it is necessary that a copy of the entry of judgment
against a defendant be delivered to the Department of Corrections or any
other correctional authority of this state, or to the correctional
authority of any political subdivision of this state, the court or the
sheriff may transmit notice of the judgment by electronic
telecommunication. The notice of judgment shall serve as authority for
imprisonment under this chapter. The notice need not be a duplicate or
photographic copy of judgment, but if it is not a duplicated or
photographic copy, then it must be followed in due course by a duplicate
or photographic copy with a notation that notice had been sent
previously. [1987 c.251 §2](1) When a judgment includes commitment
to the legal and physical custody of the Department of Corrections, the
sheriff shall deliver the defendant, together with a copy of the entry of
judgment and a statement signed by the sheriff of the number of days the
defendant was imprisoned prior to delivery, to the superintendent of the
Department of Corrections institution to which the defendant is initially
assigned pursuant to ORS 137.124. If at the time of entry of a judgment,
the defendant was serving a term of incarceration at the direction of the
supervisory authority of a county upon conviction of a prior felony, the
sheriff shall also deliver to the Department of Corrections a copy of the
prior entry of judgment committing the defendant to the supervisory
authority of the county of conviction and a statement of the number of
days the defendant has remaining to be served on the term or
incarceration imposed in the prior judgment.
(2) If the defendant is surrendered to another legal authority
prior to delivery to an institution of the Department of Corrections, the
sheriff shall forward to the Department of Corrections copies of the
entry of all pertinent judgments, a statement of the number of days the
defendant was imprisoned prior to surrender, a statement of the number of
days the defendant has remaining to be served on any term of
incarceration the defendant was serving at the direction of the
supervisory authority of a county upon conviction of a prior felony and
an identification of the authority to whom the prisoner was surrendered.
(3) Upon receipt of the information described in subsection (1) or
(2) of this section, the Department of Corrections shall establish a case
file and compute the defendant’s sentence in accordance with the
provisions of ORS 137.370.
(4) When the judgment is imprisonment in the county jail or a fine
and that the defendant be imprisoned until it is paid, the judgment shall
be executed by the sheriff of the county. The sheriff shall compute the
time the defendant was imprisoned after arrest and prior to the
commencement of the term specified in the judgment. Such time shall be
credited towards the term of the sentence. [Amended by 1955 c.660 §14;
1967 c.232 §1; 1967 c.585 §5; 1971 c.619 §1; 1973 c.631 §1; 1981 c.424
§1; 1987 c.320 §34; 1995 c.423 §29]
(1) Except as provided in ORS 137.333, 137.140 or 423.478, a judgment of
imprisonment in the county jail shall be executed by confinement in the
jail of the county where the judgment is given, except that when the
place of trial has been changed, the confinement shall take place in the
jail of the county where the action was commenced.
(2) The jailor of any county jail to which a prisoner is ordered,
sentenced or delivered pursuant to ORS 137.140 shall receive and keep
such prisoner in the same manner as if the prisoner had been ordered,
sentenced or delivered to the jailor by an officer or court of the
jailor’s own county; but the county in which the prisoner would be
imprisoned except for the provisions of ORS 137.140 shall pay all the
expenses of keeping and maintaining the prisoner in said jail. [Amended
by 1987 c.550 §4; 1996 c.4 §3] Whenever a judge sentences a
person to a term of incarceration in a county jail, the judgment may be
executed by confinement in another county or in a state correctional
facility if the county in which the person would otherwise be imprisoned:
(1) Has entered into an intergovernmental agreement as provided in
ORS 169.053; or
(2) Is located within an intergovernmental corrections entity
formed under ORS 190.265. [1996 c.4 §2]Note: 137.333 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) When a person is sentenced to imprisonment in
the custody of the Department of Corrections, the term of confinement
therein commences from the day the person is delivered to the custody of
an officer of the Department of Corrections for the purpose of serving
the sentence executed, regardless of whether the sentence is to be served
in a state or federal institution.
(2) Except as provided in subsections (3) and (4) of this section,
when a person is sentenced to imprisonment in the custody of the
Department of Corrections, for the purpose of computing the amount of
sentence served the term of confinement includes only:
(a) The time that the person is confined by any authority after the
arrest for the crime for which sentence is imposed; and
(b) The time that the person is authorized by the Department of
Corrections to spend outside a confinement facility, in a program
conducted by or for the Department of Corrections.
(3) When a judgment of conviction is vacated and a new sentence is
thereafter imposed upon the defendant for the same crime, the period of
detention and imprisonment theretofore served shall be deducted from the
maximum term, and from the minimum, if any, of the new sentence.
(4) A person who is confined as the result of a sentence for a
crime or conduct that is not directly related to the crime for which the
sentence is imposed, or for violation of the conditions of probation,
parole or post-prison supervision, shall not receive presentence
incarceration credit for the time served in jail towards service of the
term of confinement.
(5) Unless the court expressly orders otherwise, a term of
imprisonment shall be concurrent with that portion of any sentence
previously imposed that remains unexpired at the time the court imposes
sentence. This subsection applies regardless of whether the earlier
sentence was imposed by the same or any other court, and regardless of
whether the earlier sentence is being or is to be served in the same
penal institution or under the same correctional authority as will be the
later sentence. [Amended by 1955 c.660 §15; 1965 c.463 §19; 1967 c.232
§2; 1973 c.562 §2; 1973 c.631 §4; 1981 c.424 §2; 1987 c.251 §4; 1987
c.320 §35; 1995 c.657 §20]
(1) Notwithstanding the provisions of ORS 137.370 (2)(a), an offender who
has been revoked from a probationary sentence for a felony committed on
or after November 1, 1989, shall receive credit for the time served in
jail after arrest and before commencement of the probationary sentence or
for the time served in jail as part of the probationary sentence unless
the sentencing judge orders otherwise.
(2) Notwithstanding the provisions of ORS 137.320 (4), an offender
who has been ordered confined as part of a probationary sentence for a
felony committed on or after July 18, 1995, shall receive credit for the
time served in jail after arrest and before commencement of the term
unless the sentencing judge orders otherwise. [1989 c.790 §81; 1993 c.692
§4; 1995 c.657 §13]Note: 137.372 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.When the date of release from imprisonment of any
prisoner in an adult correctional facility under the jurisdiction of the
Department of Corrections, or any prisoner in a county or city jail,
falls on Saturday, Sunday or a legal holiday, the prisoner shall be
released, at the discretion of the releasing authority, on the first,
second or third day preceding the date of release which is not a
Saturday, Sunday or legal holiday. Prisoners of a county or city jail
serving a mandatory minimum term specifically limited to weekends shall
be released only at the time fixed in the sentence. [1953 c.532 §1; 1955
c.660 §16; 1971 c.290 §1; 1979 c.487 §10; 1987 c.320 §36; 2001 c.851 §7] A
judgment of commitment to the custody of the Department of Corrections
need only specify the duration of confinement as provided in ORS 137.120.
Thereafter the manner of the confinement and the treatment and employment
of a person shall be regulated and governed by whatever law is then in
force prescribing the discipline, treatment and employment of persons
committed. [Amended by 1955 c.32 §1; 1955 c.660 §17; 1959 c.687 §1; 1973
c.836 §268; 1987 c.320 §37]The commencement, term
and termination of a sentence of imprisonment in the county jail is to be
ascertained by the rule prescribed in ORS 137.370, and the manner of such
confinement and the treatment of persons so sentenced shall be governed
by whatever law may be in force prescribing the discipline of county
jails. [Amended by 1973 c.631 §3]When a judgment in a criminal action has been executed, the
sheriff or officer executing it shall return to the clerk the warrant or
copy of the entry or judgment upon which the sheriff or officer acted,
with a statement of the doings of the sheriff or officer indorsed
thereon, and the clerk shall file the same and annex it to the trial
court file, as defined in ORS 19.005. [Amended by 1967 c.471 §4] A
judgment against the defendant or complainant in a criminal action, so
far as it requires the payment of a fine, fee, assessment, costs and
disbursements of the action or restitution, may be enforced as a judgment
in a civil action. [Amended by 1973 c.836 §269; 1987 c.709 §1]When a person is convicted of an offense and sentenced
to pay any monetary obligation, the following provisions apply to
obtaining a satisfaction of the money award portion of the judgment or a
release of a judgment lien from a specific parcel of real property when
the money award portion of the judgment is not satisfied:
(1) The Attorney General, by rule, may do any of the following:
(a) Authorize the Attorney General’s office, a district attorney’s
office, any state agency within the executive branch of government or any
specific individual or group within any of these to:
(A) Issue satisfactions of the money award portions of judgments; or
(B) Release a judgment lien from a specific parcel of real property
when either the judgment lien does not attach to any equity in the real
property or the amount of equity in the real property to which the
judgment lien attaches, less costs of sale or other reasonable expenses,
is paid upon the judgment.
(b) Establish procedures and requirements that any person described
under paragraph (a) of this subsection must follow to issue satisfactions
or releases.
(2) Authorization of a person under subsection (1) of this section
is permissive and such person is not required to issue satisfactions or
releases if authorized. However, if a person is authorized under
subsection (1) of this section and does issue satisfactions or releases,
the person must comply with the procedures and requirements established
by the Attorney General by rule.
(3) If the Attorney General establishes a program under subsection
(1) of this section, the Attorney General’s office shall issue
satisfactions and releases under the program unless the Attorney General
determines that there are sufficient other agencies authorized under
subsection (1) of this section who are actually participating in the
program to provide reasonable access to satisfactions and releases on a
statewide basis.
(4)(a) Except as provided in paragraph (b) of this subsection, when
the entries in the register and the financial accounting records for the
court show conclusively that a monetary obligation imposed in a criminal
action has been paid in full, the clerk of the court may note in the
register that the money award portion of the judgment has been paid in
full. Notation in the register under this paragraph constitutes a
satisfaction of the money award portion of the judgment. The clerk of the
court is not civilly liable for any act or omission in making the
notation in the register in the manner authorized by this paragraph.
(b) When a monetary obligation imposed in a criminal action is paid
by a negotiable instrument, the clerk of the court shall proceed as
provided in paragraph (a) of this subsection only after the expiration of
21 days from the date the negotiable instrument is received by the court.
The clerk may proceed as provided in paragraph (a) of this subsection
before the expiration of the 21-day period if the judgment debtor or any
other interested person makes a request that the clerk proceed and
provides information that establishes to the satisfaction of the clerk
that the instrument has been honored.
(c) This subsection does not authorize the clerk of a court to
compromise, settle or partially satisfy a monetary obligation imposed in
a criminal action, or to release part of any property subject to a
judgment lien.
(5) Any satisfaction issued by a person authorized under this
section may be entered in the same manner and has the same effect on the
money award portion of a judgment as a satisfaction issued for the money
award portions of a judgment from a civil action or proceeding.
(6) The release of judgment liens on specific parcels of real
property by the Attorney General or by a person authorized by the
Attorney General under subsection (1) of this section is discretionary.
The money award portion of the judgment shall remain a lien against all
real property not specifically released. [1989 c.472 §4; 1993 c.145 §1;
1997 c.801 §68; 2003 c.576 §164]Note: 137.452 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(Death Sentence) (1) When a sentence
of death is pronounced, the clerk of the court shall deliver a copy of
the judgment of conviction and sentence of death to the sheriff of the
county. The sheriff shall deliver the defendant within 20 days from the
date the judgment is entered to the correctional institution designated
by the Director of the Department of Corrections pending the
determination of the automatic and direct review by the Supreme Court
under ORS 138.012.
(2) If the Supreme Court affirms the sentence of death, a death
warrant hearing shall take place in the court in which the judgment was
rendered within 30 days after the effective date of the appellate
judgment or, upon motion of the state, on a later date. The following
apply to a death warrant hearing under this subsection:
(a) The defendant must be present; and
(b) The defendant may be represented by counsel. If the defendant
was represented by appointed counsel on automatic and direct review, that
counsel’s appointment continues for purposes of the death warrant hearing
and any related matters. If that counsel is unavailable, the court shall
appoint counsel pursuant to the procedure in ORS 135.050 and 135.055.
(3)(a) If the defendant indicates the wish to waive the right to
counsel for the purpose of the death warrant hearing, the court shall
inquire of the defendant on the record to ensure that the waiver is
competent, knowing and voluntary.
(b) If the court finds that the waiver is competent, knowing and
voluntary, the court shall discharge counsel.
(c) If the court finds on the record that the waiver of the right
to counsel granted by this section is not competent, knowing or
voluntary, the court shall continue the appointment of counsel.
(d) Notwithstanding the fact that the court finds on the record
that the defendant competently, knowingly and voluntarily waives the
right to counsel, the court may continue the appointment of counsel as
advisor only for the purposes of the death warrant hearing.
(4) At the death warrant hearing, the court:
(a) After appropriate inquiry, shall make findings on the record
whether the defendant suffers from a mental condition that prevents the
defendant from comprehending the reasons for the death sentence or its
implication. The defendant has the burden of proving by a preponderance
of the evidence that the defendant suffers from a mental condition that
prevents the defendant from comprehending the reasons for the death
sentence or its implication.
(b) Shall advise the defendant that the defendant is entitled to
counsel in any post-conviction proceeding and that counsel will be
appointed if the defendant is financially eligible for appointed counsel
at state expense.
(c) Shall determine whether the defendant intends to pursue any
challenges to the sentence or conviction. If the defendant states on the
record that the defendant does not intend to challenge the sentence or
conviction, the court after advising the defendant of the consequences
shall make a finding on the record whether the defendant competently,
knowingly and voluntarily waives the right to pursue:
(A) A petition for certiorari to the United States Supreme Court;
(B) Post-conviction relief under ORS 138.510 to 138.680; and
(C) Federal habeas corpus review under 28 U.S.C. 2254.
(5) Following the death warrant hearing, a death warrant, signed by
the trial judge of the court in which the judgment was rendered and
attested by the clerk of that court, shall be drawn and delivered to the
superintendent of the correctional institution designated by the Director
of the Department of Corrections. The death warrant shall specify a day
on which the sentence of death is to be executed and shall authorize and
command the superintendent to execute the judgment of the court. The
trial court shall specify the date of execution of the sentence, taking
into consideration the needs of the Department of Corrections. The trial
court shall specify a date not less than 90 days nor more than 120 days
following the effective date of the appellate judgment.
(6)(a) Notwithstanding any other provision in this section, if the
court finds that the defendant suffers from a mental condition that
prevents the defendant from comprehending the reasons for the sentence of
death or its implications, the court may not issue a death warrant until
such time as the court, after appropriate inquiries, finds that the
defendant is able to comprehend the reasons for the sentence of death and
its implications.
(b)(A) If the court does not issue a death warrant because it finds
that the defendant suffers from a mental condition that prevents the
defendant from comprehending the reasons for the sentence of death or its
implications, the court shall conduct subsequent hearings on the issue on
motion of the district attorney or the defendant’s counsel or on the
court’s own motion, upon a showing that there is substantial reason to
believe that the defendant’s condition has changed.
(B) The court may hold a hearing under this paragraph no more
frequently than once every six months.
(C) The state and the defendant may obtain an independent medical,
psychiatric or psychological examination of the defendant in connection
with a hearing under this paragraph.
(D) In a hearing under this paragraph, the defendant has the burden
of proving by a preponderance of the evidence that the defendant
continues to suffer from a mental condition that prevents the defendant
from comprehending the reasons for the sentence of death or its
implications.
(7) If for any reason a sentence of death is not executed on the
date appointed in the death warrant, and the sentence of death remains in
force and is not stayed under ORS 138.686 or otherwise by a court of
competent jurisdiction, the court that issued the initial death warrant,
on motion of the state and without further hearing, shall issue a new
death warrant specifying a new date on which the sentence is to be
executed. The court shall specify a date for execution of the sentence,
taking into consideration the needs of the Department of Corrections. The
court shall specify a date not more than 20 days after the date on which
the state’s motion was filed.
(8) No appeal may be taken from an order issued pursuant to this
section. [1984 c.3 §5; 1999 c.1055 §2; 2001 c.962 §96]
(1)(a) At the death warrant hearing under ORS 137.463, the court shall
order that the Department of Human Services or its designee perform an
assessment of the defendant’s mental capacity to engage in reasoned
choices of legal strategies and options if:
(A) The defendant indicates the wish to waive the right to counsel;
and
(B) The court has substantial reason to believe that, due to mental
incapacity, the defendant cannot engage in reasoned choices of legal
strategies and options.
(b) The court also shall order an assessment described in paragraph
(a) of this subsection upon motion by the state.
(2) If the requirements of subsection (1) of this section are met,
the court may order the defendant to be committed to a state mental
hospital designated by the Department of Human Services for a period not
exceeding 30 days for the purpose of assessing the defendant’s mental
capacity. The report of any competency assessment performed under this
section must include, but need not be limited to, the following:
(a) A description of the nature of the assessment;
(b) A statement of the mental condition of the defendant; and
(c) A statement regarding the defendant’s mental capacity to engage
in reasoned choices of legal strategies and options.
(3) If the competency assessment cannot be conducted because the
defendant is unwilling to participate, the report must so state and must
include, if possible, an opinion as to whether the unwillingness of the
defendant is the result of a mental condition affecting the defendant’s
mental capacity to engage in reasoned choices of legal strategies and
options.
(4) The Department of Human Services shall file three copies of the
report of the competency assessment with the clerk of the court, who
shall cause copies to be delivered to the district attorney and to
counsel for the defendant. [1999 c.1055 §3]Note: 137.464, 137.466, 137.476, 137.478 and 137.482 were enacted
into law by the Legislative Assembly but were not added to or made a part
of ORS chapter 137 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation. (1)
If the court has ordered the Department of Human Services to perform a
competency assessment of the defendant under ORS 137.464 and the
assessment has been completed, the court shall determine the issue of the
defendant’s mental capacity to engage in reasoned choices of legal
strategies and options. If neither the state nor counsel for the
defendant contests the finding of the report filed under ORS 137.464, the
court may make the determination of the defendant’s mental capacity to
engage in reasoned choices of legal strategies and options on the basis
of the report. If the finding is contested, the court shall hold a
hearing on the issue. If the report is received in evidence at the
hearing, the party contesting the finding has the right to summon and to
cross-examine the psychiatrist or psychologist who submitted the report
and to offer evidence on the issue. Either party may introduce other
evidence regarding the defendant’s mental capacity to engage in reasoned
choices of legal strategies and options.
(2) If the court determines that, due to mental incapacity, the
defendant cannot engage in reasoned choices of legal strategies and
options, the court shall continue the appointment of counsel provided
under ORS 137.463.
(3) No appeal may be taken from an order issued pursuant to this
section. [1999 c.1055 §4]Note: See note under 137.464. If the
place of trial has been changed, the death warrant shall be delivered to
the sheriff of the county in which the defendant was tried. [1984 c.3 §6](1) The punishment of death shall be
inflicted by the intravenous administration of a lethal quantity of an
ultra-short-acting barbiturate in combination with a chemical paralytic
agent and potassium chloride or other equally effective substances
sufficient to cause death. The judgment shall be executed by the
superintendent of the Department of Corrections institution in which the
execution takes place, or by the designee of that superintendent. All
executions shall take place within the enclosure of a Department of
Corrections institution designated by the Director of the Department of
Corrections. The superintendent of the institution shall be present at
the execution and shall invite the presence of one or more physicians or
nurse practitioners, the Attorney General, the sheriff of the county in
which the judgment was rendered and representatives from the media. At
the request of the defendant, the superintendent shall allow no more than
two members of the clergy designated by the defendant to be present at
the execution. At the discretion of the superintendent, no more than five
friends and relatives designated by the defendant may be present at the
execution. The superintendent shall allow the presence of any peace
officers as the superintendent thinks expedient.
(2) The person who administers the lethal injection under
subsection (1) of this section shall not thereby be considered to be
engaged in the practice of medicine.
(3)(a) Any wholesale drug outlet, as defined in ORS 689.005,
registered with the State Board of Pharmacy under ORS 689.305 may provide
the lethal substance or substances described in subsection (1) of this
section upon written order of the Director of the Department of
Corrections, accompanied by a certified copy of the judgment of the court
imposing the punishment.
(b) For purposes of ORS 689.765 (7) the director shall be
considered authorized to purchase the lethal substance or substances
described in subsection (1) of this section.
(c) The lethal substance or substances described in subsection (1)
of this section are not controlled substances when purchased, possessed
or used for purposes of this section.
(4) The superintendent may require that persons who are present at
the execution under subsection (1) of this section view the initial
execution procedures, prior to the point of the administration of the
lethal injection, by means of a simultaneous closed circuit television
transmission under the direction and control of the superintendent. [1984
c.3 §7; 1987 c.320 §38; 1993 c.137 §1; 2001 c.104 §46; 2001 c.213 §1;
2003 c.103 §4; 2005 c.471 §9](1) Notwithstanding any other law,
a licensed health care professional or a nonlicensed medically trained
person may assist the Department of Corrections in an execution carried
out under ORS 137.473.
(2) Any assistance rendered in an execution carried out under ORS
137.473 by a licensed health care professional or a nonlicensed medically
trained person is not cause for disciplinary measures or regulatory
oversight by any board, commission or agency created by this state or
governed by state law that oversees or regulates the practice of health
care professionals including, but not limited to, the Board of Medical
Examiners for the State of Oregon and the Oregon State Board of Nursing.
(3) The infliction of the punishment of death by the administration
of the required lethal substances in the manner required by ORS 137.473
may not be construed to be the practice of medicine.
(4) As used in this section, “licensed health care professional”
includes, but is not limited to, a physician, physician assistant, nurse
practitioner, nurse and emergency medical technician licensed by the
Board of Medical Examiners of the State of Oregon or the Oregon State
Board of Nursing. [1999 c.1055 §9]Note: See note under 137.464.Not later than 30 days after the execution of a sentence of death
under ORS 137.473, the superintendent of the correctional institution
where the sentence was executed shall return the death warrant to the
clerk of the trial court from which the warrant was issued with the
superintendent’s return on the death warrant showing the time, place and
manner in which the death warrant was executed. [1999 c.1055 §10]Note: See note under 137.464. A copy of any document
filed in any of the following proceedings shall be served personally on
the defendant, even if the defendant is represented by counsel, by
providing the copy to the custodian of the defendant, who shall ensure
that the copy is provided promptly to the defendant:
(1) A death warrant hearing under ORS 137.463.
(2) A proceeding in which a person other than the defendant seeks
to stay execution of the defendant’s sentence of death.
(3) A petition for post-conviction relief filed under ORS 138.510
(2). [1999 c.1055 §16]Note: See note under 137.464.PROBATION AND PAROLE BY COMMITTING MAGISTRATE(1) The committing magistrate, having sentenced a defendant to
confinement in a county jail for a period of up to one year, or as
provided by rules adopted by the Oregon Criminal Justice Commission for
felonies committed on or after November 1, 1989, may parole the defendant
outside the county jail subject to condition and subject to being taken
back into confinement upon the breach of such condition. When a court
paroles a defendant under this subsection and the defendant is serving a
sentence or sanction imposed under ORS 423.478 (2)(d) or (e), the court
may order the local supervisory authority to supervise the defendant. The
committing magistrate may also authorize, limit or prohibit the release
of a sentenced defendant upon pass, furlough, leave, work or educational
release.
(2) The committing magistrate, having sentenced a defendant to
probation and having confined the defendant as a condition of that
probation in a county jail for a period up to one year, or having imposed
a sentence of probation with confinement in the county jail in accordance
with rules adopted by the Oregon Criminal Justice Commission for felonies
committed on or after November 1, 1989, may authorize, limit or prohibit
the release of such person upon pass, furlough, leave, work or
educational release.
(3) The sheriff of a county in which a defendant is confined in the
county jail by sentence or as a condition of probation may allow the
release of the defendant upon pass, furlough, leave, work or educational
release unless otherwise ordered by the committing magistrate.
(4) A defendant confined in a county jail and placed upon
educational release or upon work release shall, during the hours in which
not so engaged or employed, be confined in the county jail unless the
court by order otherwise directs or unless the sheriff otherwise directs
in the absence of a contrary order by the court. The defendant’s net
earnings shall be paid to the sheriff, who shall deduct therefrom and pay
such sums as may be ordered by the court for the defendant’s board,
restitution, fine, support of dependents and necessary personal expense.
Any balance remaining shall be retained by the sheriff until the
defendant’s discharge from custody, whereupon the balance shall be paid
to the defendant. [Amended by 1959 c.345 §1; 1973 c.836 §270; 1981 c.568
§1; 1989 c.790 §15; 1993 c.14 §8; 1999 c.661 §1]For felonies committed on or after November 1, 1989:
(1) When the judge sentences the defendant to confinement in a
county jail as a condition of probation, the judge shall sentence the
defendant directly to the custody of the sheriff or the supervisory
authority, as defined in rules of the Oregon Criminal Justice Commission,
with jurisdiction over the county jail.
(2) When the judge recommends a custodial facility or program other
than jail as a condition of probation, the judge shall sentence the
defendant directly to the custody of the supervisory authority, as
defined in rules of the Oregon Criminal Justice Commission, with
jurisdiction over the facility or program. Before imposing such a
sentence, the judge must determine from the supervisory authority that
space is available in the facility or program and that the defendant
meets the eligibility criteria established for the facility or program.
(3) A record of the time served by the defendant in custody under
community supervision during probation shall be maintained as provided by
rules adopted by the Oregon Criminal Justice Commission. [1989 c.790 §18]Note: 137.523 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) If a person pleads guilty or no contest to, or is found
guilty of, a crime described in ORS 163.305 to 163.467, and if the court
contemplates sentencing the person to probation, the court, before
entering judgment, may order that the person undergo an examination by a
psychiatrist or other physician found qualified and appointed by the
court to determine whether available medical treatment would be likely to
reduce such biological, emotional or psychological impulses, including
any paraphilia, which may be the cause of the criminal conduct and, if
so, whether the person is a suitable candidate medically for such
treatment. Such medical treatments may include the taking of prescribed
medication.
(2) If the examining psychiatrist or other physician reports that
available medical treatment would be likely to reduce the biological,
emotional or psychological impulses that were a probable cause of the
criminal conduct, and that the person is a suitable candidate medically
for such treatment, the court may include as a condition of probation
that the person participate in a prescribed program of medicine and
accept medical treatment at the person’s own expense under the care of
the psychiatrist or other physician appointed by the court and that the
person faithfully participate in the prescribed program of medical
treatment during the course of the probation.
(3) A sentence of probation under this section shall not be imposed
except upon the written consent of the convicted person. Probation under
this section may be revoked upon any failure of the convicted person to
cooperate in the treatment program, including, but not limited to, any
failure to meet with the treating physician as directed by the physician
or to take medication or otherwise to participate in the prescribed
program of medical treatment during the course of the probation. [1987
c.908 §3; 1993 c.14 §9](1) Parole and probation officers, when directed by
the court, shall fully investigate and report to the court in writing on
the circumstances of the offense, criminal record, social history and
present condition and environment of any defendant. Unless the court
directs otherwise in individual cases, a defendant may not be sentenced
to probation until the report of the investigation has been presented to
and considered by the court.
(2) Whenever a presentence report is made, the preparer of the
report shall make a reasonable effort to contact the victim and obtain a
statement describing the effect of the defendant’s offense upon the
victim. If the victim is under 18 years of age, the preparer shall obtain
the consent of the victim’s parent or guardian before contacting the
victim. The preparer of the report shall include the statement of the
victim in the presentence investigation report. If the preparer is unable
to contact the victim or if the victim declines to make a statement, the
preparer shall report that the preparer was unable to contact the victim
after making reasonable efforts to do so, or, if contact was made with
the victim, that the victim declined to make a statement for purposes of
this section. Before taking a statement from the victim, the preparer of
the report shall inform the victim that the statement will be made
available to the defendant and the defendant’s attorney prior to
sentencing as required under ORS 137.079.
(3) Whenever desirable, and facilities exist for conducting
physical and mental examinations, the investigation shall include
physical and mental examinations of such defendants.
(4) As used in this section, “victim” means the person or persons
who have suffered financial, social, psychological or physical harm as a
result of an offense, and includes, in the case of any homicide or abuse
of corpse in any degree, an appropriate member of the immediate family of
the decedent. [Amended by 1983 c.723 §1; 1993 c.14 §10; 1993 c.294 §4;
2005 c.264 §2](1) Whenever a
person pleads guilty to or is found guilty of a misdemeanor other than
driving while under the influence of intoxicants or other than a
misdemeanor involving domestic violence as defined in ORS 135.230, the
court may defer further proceedings and place the person on probation,
upon motion of the district attorney and without entering a judgment of
guilt, if the person:
(a) Consents to the disposition;
(b) Has not previously been convicted of any offense in any
jurisdiction;
(c) Has not been placed on probation under ORS 475.245;
(d) Has not completed a diversion under ORS 135.881 to 135.901; and
(e) Agrees to pay the unitary assessment for which the person would
have been liable under ORS 137.290 if the person had been convicted. The
person must pay the unitary assessment within 90 days of imposition
unless the court allows payment at a later time. The person shall pay the
unitary assessment to the clerk of the court, who shall account for and
distribute the moneys as provided in ORS 137.293 and 137.295.
(2) A district attorney may submit a motion under subsection (1) of
this section if, after considering the factors listed in subsection (3)
of this section, the district attorney finds that disposition under this
section would be in the interests of justice and of benefit to the person
and the community.
(3) In determining whether disposition under this section is in the
interests of justice and of benefit to the person and the community, the
district attorney shall consider at least the following factors:
(a) The nature of the offense. However, the offense must not have
involved injury to another person.
(b) Any special characteristics or difficulties of the person.
(c) Whether there is a probability that the person will cooperate
with and benefit from alternative treatment.
(d) Whether an available program is appropriate to the needs of the
person.
(e) The impact of the disposition upon the community.
(f) Recommendations, if any, of the involved law enforcement agency.
(g) Recommendations, if any, of the victim.
(h) Provisions for restitution.
(i) Any mitigating circumstances.
(4) Upon violation of a term or condition of probation, the court
may enter an adjudication of guilt and proceed as otherwise provided.
Upon the person’s fulfillment of the terms and conditions of probation,
the court shall discharge the person and dismiss the proceedings against
the person. A discharge and dismissal under this section is without
adjudication of guilt and is not a conviction for purposes of
disqualifications or disabilities imposed by law upon conviction of a
crime. A person may be discharged and have proceedings dismissed only
once under this section.
(5) Subsections (1) to (4) of this section do not affect any
domestic violence sentencing programs. [1999 c.819 §§1,2]Note: 137.533 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) The court may
sentence the defendant to probation subject to the following general
conditions unless specifically deleted by the court. The probationer
shall:
(a) Pay supervision fees, fines, restitution or other fees ordered
by the court.
(b) Not use or possess controlled substances except pursuant to a
medical prescription.
(c) Submit to testing of breath or urine for controlled substance
or alcohol use if the probationer has a history of substance abuse or if
there is a reasonable suspicion that the probationer has illegally used
controlled substances.
(d) Participate in a substance abuse evaluation as directed by the
supervising officer and follow the recommendations of the evaluator if
there are reasonable grounds to believe there is a history of substance
abuse.
(e) Remain in the State of Oregon until written permission to leave
is granted by the Department of Corrections or a county community
corrections agency.
(f) If physically able, find and maintain gainful full-time
employment, approved schooling, or a full-time combination of both. Any
waiver of this requirement must be based on a finding by the court
stating the reasons for the waiver.
(g) Change neither employment nor residence without prior
permission from the Department of Corrections or a county community
corrections agency.
(h) Permit the parole and probation officer to visit the
probationer or the probationer’s work site or residence and to conduct a
walk-through of the common areas and of the rooms in the residence
occupied by or under the control of the probationer.
(i) Consent to the search of person, vehicle or premises upon the
request of a representative of the supervising officer if the supervising
officer has reasonable grounds to believe that evidence of a violation
will be found, and submit to fingerprinting or photographing, or both,
when requested by the Department of Corrections or a county community
corrections agency for supervision purposes.
(j) Obey all laws, municipal, county, state and federal.
(k) Promptly and truthfully answer all reasonable inquiries by the
Department of Corrections or a county community corrections agency.
(L) Not possess weapons, firearms or dangerous animals.
(m) If recommended by the supervising officer, successfully
complete a sex offender treatment program approved by the supervising
officer and submit to polygraph examinations at the direction of the
supervising officer if the probationer:
(A) Is under supervision for a sex offense under ORS 163.305 to
163.467;
(B) Was previously convicted of a sex offense under ORS 163.305 to
163.467; or
(C) Was previously convicted in another jurisdiction of an offense
that would constitute a sex offense under ORS 163.305 to 163.467 if
committed in this state.
(n) Participate in a mental health evaluation as directed by the
supervising officer and follow the recommendation of the evaluator.
(o) Report as required and abide by the direction of the
supervising officer.
(p) If required to report as a sex offender under ORS 181.596,
report with the Department of State Police, a chief of police, a county
sheriff or the supervising agency:
(A) When supervision begins;
(B) Within 10 days of a change in residence;
(C) Once each year within 10 days of the probationer’s date of
birth;
(D) Within 10 days of the first day the person works at, carries on
a vocation at or attends an institution of higher education; and
(E) Within 10 days of a change in work, vocation or attendance
status at an institution of higher education.
(2) In addition to the general conditions, the court may impose any
special conditions of probation that are reasonably related to the crime
of conviction or the needs of the probationer for the protection of the
public or reformation of the probationer, or both, including, but not
limited to, that the probationer shall:
(a) For crimes committed prior to November 1, 1989, and
misdemeanors committed on or after November 1, 1989, be confined to the
county jail or be restricted to the probationer’s own residence or to the
premises thereof, or be subject to any combination of such confinement
and restriction, such confinement or restriction or combination thereof
to be for a period not to exceed one year or one-half of the maximum
period of confinement that could be imposed for the offense for which the
defendant is convicted, whichever is the lesser.
(b) For felonies committed on or after November 1, 1989, be
confined in the county jail, or be subject to other custodial sanctions
under community supervision, or both, as provided by rules of the Oregon
Criminal Justice Commission.
(c) For crimes committed on or after December 5, 1996, sell any
assets of the probationer as specifically ordered by the court in order
to pay restitution.
(3) When a person who is a sex offender is released on probation,
the court shall impose as a special condition of probation that the
person not reside in any dwelling in which another sex offender who is on
probation, parole or post-prison supervision resides, without the
approval of the person’s supervising parole and probation officer, or in
which more than one other sex offender who is on probation, parole or
post-prison supervision resides, without the approval of the director of
the probation agency that is supervising the person or of the county
manager of the Department of Corrections, or a designee of the director
or manager. As soon as practicable, the supervising parole and probation
officer of a person subject to the requirements of this subsection shall
review the person’s living arrangement with the person’s sex offender
treatment provider to ensure that the arrangement supports the goals of
offender rehabilitation and community safety. As used in this subsection:
(a) “Dwelling” has the meaning given that term in ORS 469.160.
(b) “Dwelling” does not include a residential treatment facility or
a halfway house.
(c) “Halfway house” means a publicly or privately operated profit
or nonprofit residential facility that provides rehabilitative care and
treatment for sex offenders.
(d) “Sex offender” has the meaning given that term in ORS 181.594.
(4)(a) If the person is released on probation following conviction
of a sex crime, as defined in ORS 181.594, or an assault, as defined in
ORS 163.175 or 163.185, and the victim was under 18 years of age, the
court, if requested by the victim, shall include as a special condition
of the person’s probation that the person not reside within three miles
of the victim unless:
(A) The victim resides in a county having a population of less than
130,000 and the person is required to reside in that county;
(B) The person demonstrates to the court by a preponderance of the
evidence that no mental intimidation or pressure was brought to bear
during the commission of the crime;
(C) The person demonstrates to the court by a preponderance of the
evidence that imposition of the condition will deprive the person of a
residence that would be materially significant in aiding in the
rehabilitation of the person or in the success of the probation; or
(D) The person resides in a halfway house. As used in this
subparagraph, “halfway house” means a publicly or privately operated
profit or nonprofit residential facility that provides rehabilitative
care and treatment for sex offenders.
(b) A victim may request imposition of the special condition of
probation described in this subsection at the time of sentencing in
person or through the prosecuting attorney.
(c) If the court imposes the special condition of probation
described in this subsection and if at any time during the period of
probation the victim moves to within three miles of the probationer’s
residence, the court may not require the probationer to change the
probationer’s residence in order to comply with the special condition of
probation.
(5) When a person who is a sex offender, as defined in ORS 181.594,
is released on probation, the Department of Corrections or the county
community corrections agency, whichever is appropriate, shall notify the
chief of police, if the person is going to reside within a city, and the
county sheriff of the county in which the person is going to reside of
the person’s release and the conditions of the person’s release.
(6) Failure to abide by all general and special conditions imposed
by the court and supervised by the Department of Corrections or a county
community corrections agency may result in arrest, modification of
conditions, revocation of probation or imposition of structured,
intermediate sanctions in accordance with rules adopted under ORS 137.595.
(7) The court may at any time modify the conditions of probation.
(8) A court may not order revocation of probation as a result of
the probationer’s failure to pay restitution unless the court determines
from the totality of the circumstances that the purposes of the probation
are not being served.
(9) It is not a cause for revocation of probation that the
probationer failed to apply for or accept employment at any workplace
where there is a labor dispute in progress. As used in this subsection,
“labor dispute” has the meaning for that term provided in ORS 662.010.
(10) As used in this section, “attends,” “institution of higher
education,” “works” and “carries on a vocation” have the meanings given
(1) Subject to the limitations in ORS
137.010 and to rules of the Oregon Criminal Justice Commission for
felonies committed on or after November 1, 1989:
(a) The period of probation shall be as the court determines and
may, in the discretion of the court, be continued or extended.
(b) The court may at any time discharge a person from probation.
(2) At any time during the probation period, the court may issue a
warrant and cause a defendant to be arrested for violating any of the
conditions of probation. Any parole and probation officer, police officer
or other officer with power of arrest may arrest a probationer without a
warrant for violating any condition of probation, and a statement by the
parole and probation officer or arresting officer setting forth that the
probationer has, in the judgment of the parole and probation officer or
arresting officer, violated the conditions of probation is sufficient
warrant for the detention of the probationer in the county jail until the
probationer can be brought before the court or until the parole and
probation officer or supervisory personnel impose and the offender agrees
to structured, intermediate sanctions in accordance with the rules
adopted under ORS 137.595. Disposition shall be made during the first 36
hours in custody, excluding Saturdays, Sundays and holidays, unless later
disposition is authorized by supervisory personnel. If authorized by
supervisory personnel, the disposition shall take place in no more than
five judicial days. If the offender does not consent to structured,
intermediate sanctions imposed by the parole and probation officer or
supervisory personnel in accordance with the rules adopted under ORS
137.595, the parole and probation officer, as soon as practicable, but
within one judicial day, shall report the arrest or detention to the
court that imposed the probation. The parole and probation officer shall
promptly submit to the court a report showing in what manner the
probationer has violated the conditions of probation.
(3) Except for good cause shown or at the request of the
probationer, the probationer shall be brought before a magistrate during
the first 36 hours of custody, excluding holidays, Saturdays and Sundays.
That magistrate, in the exercise of discretion, may order the probationer
held pending a violation or revocation hearing or pending transfer to the
jurisdiction of another court where the probation was imposed. In lieu of
an order that the probationer be held, the magistrate may release the
probationer upon the condition that the probationer appear in court at a
later date for a probation violation or revocation hearing. If the
probationer is being held on an out-of-county warrant, the magistrate may
order the probationer released subject to an additional order to the
probationer that the probationer report within seven calendar days to the
court that imposed the probation.
(4) When a probationer has been sentenced to probation in more than
one county and the probationer is being held on an out-of-county warrant
for a probation violation, the court may consider consolidation of some
or all pending probation violation proceedings pursuant to rules made and
orders issued by the Chief Justice of the Supreme Court under ORS 137.547:
(a) Upon the motion of the district attorney or defense counsel in
the county in which the probationer is held; or
(b) Upon the court’s own motion.
(5)(a) For defendants sentenced for felonies committed prior to
November 1, 1989, and for any misdemeanor, the court that imposed the
probation, after summary hearing, may revoke the probation and:
(A) If the execution of some other part of the sentence has been
suspended, the court shall cause the rest of the sentence imposed to be
executed.
(B) If no other sentence has been imposed, the court may impose any
other sentence which originally could have been imposed.
(b) For defendants sentenced for felonies committed on or after
November 1, 1989, the court that imposed the probationary sentence may
revoke probation supervision and impose a sanction as provided by rules
of the Oregon Criminal Justice Commission.
(6) Except for good cause shown, if the revocation hearing is not
conducted within 14 calendar days following the arrest or detention of
the probationer, the probationer shall be released from custody.
(7) A defendant who has been previously confined in the county jail
as a condition of probation pursuant to ORS 137.540 or as part of a
probationary sentence pursuant to the rules of the Oregon Criminal
Justice Commission may be given credit for all time thus served in any
order or judgment of confinement resulting from revocation of probation.
(8) In the case of any defendant whose sentence has been suspended
but who has not been sentenced to probation, the court may issue a
warrant and cause the defendant to be arrested and brought before the
court at any time within the maximum period for which the defendant might
originally have been sentenced. Thereupon the court, after summary
hearing, may revoke the suspension of sentence and cause the sentence
imposed to be executed.
(9) If a probationer fails to appear or report to a court for
further proceedings as required by an order under subsection (3) of this
section, the failure to appear may be prosecuted in the county to which
the probationer was ordered to appear or report.
(10) The probationer may admit or deny the violation by being
physically present at the hearing or by means of simultaneous electronic
transmission as described in ORS 131.045.
(11)(a) The victim has the right:
(A) Upon request made within the time period prescribed in the
notice required by ORS 147.417, to be notified by the district attorney
of any hearing before the court that may result in the revocation of the
defendant’s probation;
(B) To appear personally at the hearing; and
(C) If present, to reasonably express any views relevant to the
issues before the court.
(b) Failure of the district attorney to notify the victim under
paragraph (a) of this subsection or failure of the victim to appear at
the hearing does not affect the validity of the proceeding. [Formerly
137.550; 2003 c.577 §14; 2005 c.264 §4; 2005 c.566 §11]
(1) Notwithstanding any other provision of law, the Chief Justice of the
Supreme Court may make rules or issue orders under ORS 1.002 to establish
procedures for the consolidation of probation violation proceedings
pending against a probationer in multiple circuit courts.
(2) Rules made or orders issued under this section:
(a) Shall provide that if a probationer is alleged to have violated
the conditions of a sentence of probation in more than one court, an
initiating court may consider consolidation of some or all pending
probation violation proceedings before one or more appropriate courts:
(A) Upon the motion of the district attorney or the defense counsel
in the county in which the probationer is in custody or otherwise before
the court; or
(B) Upon the court’s own motion.
(b) May determine which courts are appropriate courts for the
consolidation of probation violation proceedings in described
circumstances or establish a process for determining an appropriate court.
(c) Shall require the consent of the probationer to a consolidated
probation violation proceeding and written waivers by the probationer as
determined necessary or fair.
(d) Shall require the approval of the judge of any responding
court, the initiating court and any appropriate court being considered
for a consolidated probation violation proceeding.
(e) Shall require the approval of the district attorney of the
county for any responding court, the initiating court and any court being
considered as an appropriate court.
(f) May provide for the recall of warrants in any court other than
the appropriate court as convenient to accomplish the purposes of this
section.
(g) May provide for the transmission of copies of such papers,
records or other information to or from courts, district attorneys and
parole and probation officers as is necessary, appropriate or convenient
for a consolidated probation violation proceeding under this section.
(h) May provide any processes necessary, appropriate or convenient
for the proceeding before the appropriate court and for the appropriate
court to make a disposition of the cases that are consolidated in a
proceeding under this section.
(i) May include any rules or orders establishing other procedures
necessary, appropriate or convenient for the fair and expeditious
resolution of consolidated probation violation proceedings under this
section.
(3) When an appropriate court transmits the judgment it enters for
a consolidated probation violation proceeding under this section to the
initiating court, if different from the appropriate court, and to a
responding court for filing, thereafter that judgment is for all purposes
the same as a judgment of the court of the initiating or responding
county with regard to the matters on which that judgment makes
determination and disposition.
(4) As used in this section:
(a) “Appropriate court” means the court most appropriate to hold a
consolidated probation violation proceeding under this section given the
totality of the circumstances involving the alleged probation violations
and multiple jurisdiction proceedings. The circumstances include, but are
not limited to:
(A) The location, residence or work location of the probationer;
(B) The location of the probationer’s parole and probation officer;
(C) The location of any witnesses or victims of the alleged
violations or of any alleged new offenses with which the probationer is
charged;
(D) The location of any victims of the offense for which the
probationer was sentenced to probation;
(E) The nature and location of previous offenses for which the
probationer is serving a sentence;
(F) The nature of any new offenses with which the probationer is
charged;
(G) The resources of local jails;
(H) The nature and location of any services that may be appropriate
as a consequence of the alleged violation or new charges;
(I) Whether the judge who imposed the original sentence provided in
the original judgment direction to return any probation violation
proceedings to that judge; and
(J) The interests of local courts and district attorneys concerning
the probationer and any disposition that a court may impose concerning
the probationer.
(b) “Initiating court” means the court in which a probationer is in
custody or otherwise before the court.
(c) “Responding court” means a court other than an initiating court
or appropriate court that entered a judgment under which the probationer
is currently serving a sentence of probation and which court consents to
the consolidation of probation violation proceedings in an appropriate
court under this section. [1999 c.614 §1; 2005 c.264 §5]Note: 137.547 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.
(1) The State Board of Parole and Post-Prison Supervision shall adopt
rules to establish release dates for revocations of probationary
sentences imposed for felonies committed before November 1, 1989.
(2) To the extent permissible under law, the release dates for
revocation of probationary sentences imposed for felonies committed
before November 1, 1989, shall be set consistent with sanctions for
probation revocations as provided by rules of the Oregon Criminal Justice
Commission for felonies committed on or after November 1, 1989. [1989
c.790 §18a]Note: 137.551 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1)
In addition to any authority granted under ORS 137.545, a court may
authorize the use of citations to direct its probationers who violate
conditions of probation to appear before the court. The following apply
to the use of citations under this subsection:
(a) A court may authorize issuance of citations under this
subsection only by officers who are permitted under ORS 137.545 to make
an arrest without a warrant.
(b) Nothing in this subsection limits the authority, under ORS
137.545, of a parole and probation officer, police officer or other
officer to arrest for violation of conditions of probation even if the
officer is authorized under this section to issue a citation.
(c) A court may impose any conditions upon an authorization under
this subsection that the court considers appropriate. The conditions may
include, but are not limited to, requirements that citation authority be
sought on a case-by-case basis, provision for citation in all cases that
meet certain conditions, allowance of citation for certain types of cases
or designation of certain cases where citations shall not be used.
(2) The cited probationer shall appear before the court at the
time, date and court specified in the citation. If the probationer fails
to appear at the time, date and court specified in the citation, the
court may issue a warrant of arrest, upon the request of the supervisor
of probation, or upon request of the district attorney, or upon the
court’s own motion. [1987 c.761 §2; 2005 c.264 §6] (1) If a citation is issued
under ORS 137.553, the officer who issues the citation shall serve one
copy of the citation to the probationer who is cited to appear and shall,
as soon as practicable, file a duplicate copy with the court in which the
probationer is cited to appear, along with proof of service.
(2) Each copy of the citation issued under ORS 137.553 shall
contain:
(a) The name of the court at which the cited probationer is to
appear.
(b) The name of the probationer cited.
(c) A brief description of the asserted probation violation, the
date, the time and the place at which the violation occurred, the date on
which the citation was issued and the name of the officer who issued the
citation.
(d) The time, date and place at which the cited probationer is to
appear in court.
(e) A notice to the effect that:
(A) The citation is not itself a motion to revoke probation, but
that such a motion will be filed and a copy provided to the probationer
when the probationer appears at court;
(B) The probationer must appear in court at the time set in the
citation; and
(C) If the probationer fails to appear as directed, the court may
immediately issue a warrant for the probationer’s arrest or the
probationer may immediately be taken into custody by the officer
responsible for supervising the probation. [1987 c.761 §3]Within 10 days following the issuing of any judgment of
suspension of imposition or execution of sentence or of probation of any
person convicted of a crime, or of the continuation, extension,
modification or revocation of any such judgment, or of the discharge of
such person, or the recommendation by the court to the Governor of the
pardon of such person, provided such person is under the jurisdiction of
the Department of Corrections, the court issuing such a judgment shall
cause prompt delivery of a copy of the same to the Director of the
Department of Corrections. [Amended by 1973 c.836 §271; 1979 c.75 §1;
1987 c.320 §39; 1991 c.111 §16; 1993 c.18 §23]A court may transfer a person on probation under its
jurisdiction from the supervision of one probation agency to that of
another probation agency. Whenever a person sentenced to probation
resides in or is to remove to a locality outside the jurisdiction of the
court that sentenced the person to probation, the court may transfer the
person to a parole and probation officer appointed to serve for the
locality in which the person resides or to which the person is to remove:
(1) If the parole and probation officer sends to the court desiring
to make such transfer a written statement that the parole and probation
officer will exercise supervision over the person.
(2) If the statement is approved in writing by the judge of the
court to which the parole and probation officer is attached. [Amended by
1973 c.836 §272; 1993 c.14 §13; 2005 c.264 §7]Whenever the transfer mentioned in ORS 137.570 is made, the
court making it shall send to the probation agency to whose supervision
the probationer is transferred a copy of all the records of the court as
to the offense, criminal record and social history of the probationer.
The probation agency shall report concerning the conduct and progress of
the probationer to the court that sentenced the probationer to probation.
Parole and probation officers or agencies shall have, with respect to
persons transferred to their supervision from any other jurisdiction, all
the powers and be subject to all the duties now imposed by law upon them
in regard to probationers received on probation from courts in their own
jurisdiction. [Amended by 1973 c.836 §273; 1993 c.14 §14; 2005 c.264 §8]The judge or judges of
any court of criminal jurisdiction, including municipal courts, may
appoint, with the prior approval of the governing body of the county or
city involved, and at pleasure remove, parole and probation officers and
clerical assistants that may be necessary. Parole and probation officers
appointed by the court shall be selected because of definite
qualifications as to character, personality, ability and training. In
courts where more than one parole and probation officer is appointed, one
shall be designated chief parole and probation officer and shall have
general supervision of the probation work of parole and probation
officers appointed by and under the direction of the court. Appointments
shall be in writing and entered on the records of the court. Parole and
probation officers and clerical assistants appointed under this section
are not state officers or employees, and their compensation and expenses
shall not be paid by the state. [Amended by 1971 c.633 §12; 1973 c.836
§274; 1981 s.s. c.3 §38; 2005 c.264 §9] The Legislative
Assembly finds that:
(1) To protect the public, the criminal justice system must compel
compliance with the conditions of probation by responding to violations
with swift, certain and fair punishments.
(2) Decisions to incarcerate offenders in state prisons for
violation of the conditions of probation must be made upon a reasonably
systematic basis that will insure that available prison space is used to
house those offenders who constitute a serious threat to the public,
taking into consideration the availability of both prison space and local
resources. [1993 c.680 §8]Note: 137.592 to 137.599 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 137 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.(1) Except as otherwise
provided in subsection (2) of this section, when a court suspends the
imposition or execution of sentence and places a defendant on probation,
or sentences a defendant to probation under the rules of the Oregon
Criminal Justice Commission and orders a defendant placed under the
supervision of the Department of Corrections or a county community
corrections agency, the Department of Corrections or the county community
corrections agency shall impose structured, intermediate sanctions for
the violation of conditions of probation in accordance with rules adopted
under ORS 137.595. Under no circumstances may the Department of
Corrections or a county community corrections agency revoke probation.
(2) Notwithstanding ORS 137.124 and 423.478 and any other provision
of law, the sentencing judge shall retain authority:
(a) To revoke probation and receive recommendations regarding
revocation of probation from the supervising officer made in accordance
with rules adopted under ORS 137.595;
(b) To determine whether conditions of probation have been violated
and to impose sanctions for the violations if the court, at the time of
sentencing, states on the record that the court is retaining such
authority;
(c) To cause a probationer to be brought before the court for a
hearing upon motion of the district attorney or the court’s own motion
prior to the imposition of any structured, intermediate sanctions or
within four judicial days after receiving notice that a structured,
intermediate sanction has been imposed on the probationer pursuant to
rules adopted under ORS 137.595 and to revoke probation or impose such
other or additional sanctions or modify the conditions of probation as
authorized by law; and
(d) To impose and require an offender to serve a period of
incarceration not to exceed 180 days as a sanction for revocation of
probation.
(3) In no case may the sentencing judge cause a probationer to be
brought before the court for a hearing and revoke probation or impose
other or additional sanctions after the probationer has completed a
structured, intermediate sanction imposed by the Department of
Corrections or a county community corrections agency pursuant to rules
adopted under ORS 137.595. [1993 c.680 §10; 1995 c.423 §9a]Note: See note under 137.592. (1) The Department
of Corrections shall adopt rules to carry out the purposes of chapter
680, Oregon Laws 1993, by establishing a system of structured,
intermediate probation violation sanctions that may be imposed by the
Department of Corrections or a county community corrections agency,
taking into consideration the severity of the violation behavior, the
prior violation history, the severity of the underlying criminal
conviction, the criminal history of the offender, protection of the
community, deterrence, the effective capacity of the state prisons and
the availability of appropriate local sanctions including, but not
limited to, jail, community service work, house arrest, electronic
surveillance, restitution centers, work release centers, day reporting
centers or other local sanctions.
(2) Rules adopted by the Department of Corrections under this
section shall establish:
(a) A system of structured, intermediate probation violation
sanctions that may be imposed by the Department of Corrections or a
county community corrections agency on a probationer who waives in
writing a probation violation hearing, admits or affirmatively chooses
not to contest the violations alleged in a probation violation report and
consents to the sanctions;
(b) Procedures to provide a probationer with written notice of the
probationer’s right to a hearing before the court to determine whether
the probationer violated the conditions of probation alleged in a
probation violation report, and if so, whether to continue the
probationer on probation subject to the same or modified conditions, or
order sanctions for any violations and the right to be represented by
counsel at the hearing if the probationer is financially eligible;
(c) Procedures for a probationer to waive in writing a probation
violation hearing, admit or not contest the violations alleged in the
probation violation report and consent to the imposition of structured,
intermediate sanctions by the Department of Corrections or a county
community corrections agency;
(d) The level and type of sanctions that may be imposed by parole
and probation officers and by supervisory personnel;
(e) The level and type of violation behavior warranting a
recommendation to the court that probation be revoked;
(f) Procedures for notifying district attorneys and the courts of
probation violations admitted by probationers and the sanctions imposed
by the Department of Corrections or county community corrections
agencies; and
(g) Such other policies or procedures as are necessary to carry out
the purposes of chapter 680, Oregon Laws 1993.
(3) Jail confinement imposed as a custodial sanction by the
Department of Corrections or a county community corrections agency
pursuant to rules adopted under this section may not exceed 60 days per
violation report. The total number of days of jail confinement for all
violation reports per conviction may not exceed the maximum number of
available jail custody units under rules adopted by the Oregon Criminal
Justice Commission.
(4) Nonjail confinement imposed as a custodial sanction by the
Department of Corrections or a county community corrections agency
pursuant to rules adopted under this section may not exceed the maximum
number of available nonjail custody units under rules adopted by the
Oregon Criminal Justice Commission. [1993 c.680 §11; 1999 c.121 §1; 2001
c.962 §93; 2005 c.264 §10]Note: See note under 137.592.Note: Legislative Counsel has substituted “chapter 680, Oregon Laws
1993,” for the words “this Act” in section 11, chapter 680, Oregon Laws
1993, compiled as 137.595. Specific ORS references have not been
substituted, pursuant to 173.160. These sections may be determined by
referring to the 1993 Comparative Section Table located in Volume 20 of
ORS. The
Oregon Criminal Justice Commission shall amend its rules to increase the
jail and nonjail custody units that can be imposed as custodial sanctions
for probation violations under ORS 137.595. The commission shall base the
amendments on the existing rule structure and may not increase existing
sanction limits by more than 60 days. [2001 c.737 §1]Note: See note under 137.592. Subject
to rules adopted under ORS 137.595, after receiving written notification
of rights, a probationer may waive in writing a probation violation
hearing, admit or not contest the violations alleged in the probation
violation report and consent to the imposition of structured,
intermediate sanctions by the Department of Corrections or a county
community corrections agency pursuant to rules adopted under ORS 137.595.
[1993 c.680 §12]Note: See note under 137.592. Prior
to the imposition of any structured, intermediate sanction or within four
judicial days after receiving notice that a structured, intermediate
sanction has been imposed on a probationer pursuant to rules adopted
under ORS 137.595, the court, upon motion of the district attorney or on
its own motion, may cause the probationer to be brought before the court
for a hearing, and may revoke probation or impose such other or
additional sanctions or modify the conditions of probation as authorized
by law. In no case may the sentencing judge cause a probationer to be
brought before the court for a hearing and revoke probation or impose
other or additional sanctions after the probationer has completed a
structured, intermediate sanction imposed by the Department of
Corrections or a county community corrections agency pursuant to rules
adopted under ORS 137.595. [1993 c.680 §13]Note: See note under 137.592.The judge or judges of
any court of criminal jurisdiction, including municipal courts, may
request at any time the staff of the Department of Corrections to perform
any of the duties that might be required of a parole and probation
officer appointed by the court pursuant to ORS 137.590. All requests for
services of the staff shall be made upon the Director of the Department
of Corrections, who shall order the prompt performance of any such
requested service whenever members of the staff are available for such
duty. [Amended by 1969 c.597 §126; 1987 c.320 §40; 2005 c.264 §11](1) As used in this section, “parole and
probation officer” has the meaning given that term in ORS 181.610.
(2) Parole and probation officers of the Department of Corrections
or a county community corrections agency and those appointed by the court
have the powers of peace officers in the execution of their duties, but
are not active members of the regular police force. Each parole and
probation officer appointed by the court, before entering on the duties
of office, shall take an oath of office. Each parole and probation
officer who collects or has custody of money shall execute a bond in a
penal sum to be fixed by the court, with sufficient sureties approved
thereby, conditioned for the honest accounting of all money received by
the parole and probation officer as a parole and probation officer. The
accounts of all parole and probation officers are subject to audit at any
time by the proper fiscal authorities. [Amended by 1973 c.836 §275; 1987
c.320 §41; 2005 c.264 §1] The duties of
parole and probation officers appointed pursuant to ORS 137.590 or
423.500 to 423.560 are:
(a) To make investigations and reports under ORS 137.530 as are
required by the judge of any court having jurisdiction within the county,
city or judicial district for which the officer is appointed to serve.
(b) To receive under supervision any person sentenced to probation
by any court in the jurisdiction area for which the officers are
appointed to serve.
(c) To provide release assistance, and supervise any person placed
in a diversion, work release or community services alternative program,
by any court in the jurisdiction area for which the officers are
appointed to serve.
(d) To give each person under their supervision a statement of the
conditions of probation or program participation and to instruct the
person regarding the conditions.
(e) To keep informed concerning the conduct and condition of
persons under their supervision by visiting, requiring reports and
otherwise.
(f) To use all suitable methods, not inconsistent with the
condition of probation or program participation, to aid and encourage
persons under their supervision and to effect improvement in their
conduct and condition.
(g) To keep detailed records of the work done and to make reports
to the courts and to the Department of Corrections as the courts require.
(h) To perform other duties not inconsistent with the normal and
customary functions of parole and probation officers as may be required
by any court in the jurisdiction area for which the officers are
appointed to serve.
(2) Parole and probation officers of the Department of Corrections
have duties as specified by rule adopted by the Director of the
Department of Corrections.
(3) Notwithstanding subsection (2) of this section, parole and
probation officers may not be required to collect from persons under
their supervision any fees to offset the costs of supervising the
probation, including but not limited to those ordered pursuant to ORS
137.540 or 423.570. [Amended by 1969 c.597 §127; 1981 c.447 §1; 1987
c.320 §42; 1993 c.14 §15; 2005 c.264 §12]DETERMINATE SENTENCES(1) When, in the case of a felony described in subsection
(2) of this section, a court sentences a convicted defendant who has
previously been convicted of any felony designated in subsection (2) of
this section, the sentence shall not be an indeterminate sentence to
which the defendant otherwise would be subject under ORS 137.120, but,
unless it imposes a death penalty under ORS 163.105, the court shall
impose a determinate sentence, the length of which the court shall
determine, to the custody of the Department of Corrections. Any mandatory
minimum sentence otherwise provided by law shall apply. The sentence
shall not exceed the maximum sentence otherwise provided by law in such
cases. The convicted defendant who is subject to this section shall not
be eligible for probation. The convicted defendant shall serve the entire
sentence imposed by the court and shall not, during the service of such a
sentence, be eligible for parole or any form of temporary leave from
custody. The person shall not be eligible for any reduction in sentence
pursuant to ORS 421.120 or for any reduction in term of incarceration
pursuant to ORS 421.121.
(2) Felonies to which subsection (1) of this section applies
include and are limited to:
(a) Murder, as defined in ORS 163.115, and any aggravated form
thereof.
(b) Manslaughter in the first degree, as defined in ORS 163.118.
(c) Assault in the first degree, as defined in ORS 163.185.
(d) Kidnapping in the first degree, as defined in ORS 163.235.
(e) Rape in the first degree, as defined in ORS 163.375.
(f) Sodomy in the first degree, as defined in ORS 163.405.
(g) Unlawful sexual penetration in the first degree, as defined in
ORS 163.411.
(h) Burglary in the first degree, as defined in ORS 164.225.
(i) Arson in the first degree, as defined in ORS 164.325.
(j) Robbery in the first degree, as defined in ORS 164.415.
(3) When the court imposes a sentence under this section, the court
shall indicate in the judgment that the defendant is subject to this
section. [1989 c.1 §§2,3; 1991 c.386 §6; 1993 c.692 §5; 1995 c.79 §49;
2003 c.14 §59] When a
determinate sentence of imprisonment is required or authorized by
statute, the sentence imposed shall be the determinate sentence or the
sentence as provided by the rules of the Oregon Criminal Justice
Commission, whichever is longer. [1989 c.790 §82; 1995 c.520 §2]Note: 137.637 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.OREGON CRIMINAL JUSTICE COMMISSIONAs used in ORS 137.654, 137.656 and 137.658:
(1) “Commission” means the Oregon Criminal Justice Commission.
(2) “Criminal justice system” includes all activities and agencies,
whether state or local, public or private, pertaining to the prevention,
prosecution and defense of offenses, the disposition of offenders under
the criminal law and the disposition or treatment of juveniles
adjudicated to have committed an act which, if committed by an adult,
would be a crime. The “criminal justice system” includes police, public
prosecutors, defense counsel, courts, correction systems, mental health
agencies, crime victims and all public and private agencies providing
services in connection with those elements, whether voluntarily,
contractually or by order of a court. [1985 c.558 §1; 1995 c.420 §4; 1997
c.433 §1]Note: 137.651 to 137.673 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 137 by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) There is established the Oregon Criminal Justice Commission
consisting of nine members. The Governor shall appoint seven members who
are subject to confirmation by the Senate pursuant to section 4, Article
III of the Oregon Constitution. The President of the Senate shall appoint
one state Senator as a nonvoting member. The Speaker of the House of
Representatives shall appoint one state Representative as a nonvoting
member. Members serve at the pleasure of the appointing authority. The
Governor shall appoint members of the commission consistent with the
following:
(a) Members shall be appointed with consideration of the different
geographic regions of the state.
(b) Not more than four members may belong to the same political
party. Party affiliation is determined by the appropriate entry on
official election registration cards.
(2)(a) The term of office of each member is four years or until the
end of a legislative member’s legislative term, whichever occurs first.
Before the expiration of the term of a member, the appointing authority
shall appoint a successor whose term begins immediately upon the
expiration of the term of the current member. A member is eligible for
reappointment but may serve no more than two consecutive terms.
(b) In case of a vacancy for any cause, the appointing authority
shall appoint a person to fill the office for the unexpired term. When a
person is appointed under this paragraph, the unexpired term may not be
considered for purposes of the limitation to two consecutive terms of
service.
(3) The Governor shall appoint one of the commissioners as
chairperson, to serve at the pleasure of the Governor. The members of the
commission shall elect from among themselves a vice chairperson who shall
preside over meetings and exercise the functions of the chairperson
during absence or disability of the chairperson. The chairperson and vice
chairperson shall execute the duties determined by the commission to be
necessary.
(4) The chairperson shall appoint one member, subject to the
approval of the commission, to serve on an executive committee with the
chairperson and vice chairperson. The executive committee may exercise
the powers and responsibilities of the commission between meetings of the
commission. All action taken by the executive committee not previously
authorized must be submitted to the commission for approval at the next
regular or special meeting.
(5) A majority of the voting members of the commission constitutes
a quorum for the transaction of business.
(6) The commission shall meet at least once a month, at a time and
place determined by the commission. The commission shall also meet at
such other times and places as are specified by the call of the
chairperson. If a majority of members, in writing, request a special
meeting, the chairperson shall designate a time for a special meeting as
requested.
(7) The Governor shall appoint an executive director for the
commission who shall be in the exempt service and who shall be
responsible for the performance of duties assigned by the commission.
Subject to the State Personnel Relations Law, the executive director may
employ appropriate staff to carry out the duties assigned by the
commission.
(8) Members of the commission are entitled to expenses as provided
in ORS 292.495. Subject to the availability of funds, members of a
committee established under ORS 137.658 who are not commission members
may be reimbursed for actual and necessary travel and other expenses
incurred by them in the performance of their official duties, subject to
ORS 292.495 (2). Any legislative members are entitled to payment of
compensation and expense reimbursement under ORS 171.072, payable from
funds appropriated to the Legislative Assembly.
(9) The commission is subject to the provisions of ORS 291.201 to
291.222 and 291.230 to 291.260.
(10) The commission shall consult with and seek advice and counsel
of the Chief Justice of the Supreme Court and the State Court
Administrator on any matter that impacts the operation of the courts. The
Chief Justice may have a representative participate in any meeting of the
commission. [1995 c.420 §1; 1999 c.172 §1; 2001 c.919 §4]Note: See note under 137.651. (1) The purpose of
the Oregon Criminal Justice Commission is to improve the effectiveness
and efficiency of state and local criminal justice systems by providing a
centralized and impartial forum for statewide policy development and
planning.
(2) The primary duty of the commission is to develop and maintain a
state criminal justice policy and comprehensive, long-range plan for a
coordinated state criminal justice system that encompasses public safety,
offender accountability, crime reduction and prevention and offender
treatment and rehabilitation. The plan must include, but need not be
limited to, recommendations regarding:
(a) Capacity, utilization and type of state and local prison and
jail facilities;
(b) Implementation of community corrections programs;
(c) Alternatives to the use of prison and jail facilities;
(d) Appropriate use of existing facilities and programs;
(e) Whether additional or different facilities and programs are
necessary;
(f) Methods of assessing the effectiveness of juvenile and adult
correctional programs, devices and sanctions in reducing future criminal
conduct by juvenile and adult offenders; and
(g) Methods of reducing the risk of future criminal conduct.
(3) Other duties of the commission are:
(a) To conduct joint studies by agreement with other state
agencies, boards or commissions on any matter within the jurisdiction of
the commission.
(b) To provide Oregon criminal justice analytical and statistical
information to federal agencies and serve as a clearinghouse and
information center for the collection, preparation, analysis and
dissemination on state and local sentencing practices.
(c) To provide technical assistance and support to local public
safety coordinating councils.
(d) To receive grant applications to start or expand drug court
programs as defined in ORS 3.450, to make rules to govern the grant
process and to award grant funds according to the rules.
(4) The commission shall establish by rule the information that
must be submitted under ORS 137.010 (9) and the methods for submitting
the information. A rule adopted under this subsection must be approved by
the Chief Justice of the Supreme Court before it takes effect. [1995
c.420 §3; 1997 c.433 §2; 1999 c.1053 §44; 2005 c.10 §3; 2005 c.503 §11;
2005 c.706 §24]Note: See note under 137.651.Note: Section 1, chapter 474, Oregon Laws 2005, provides:
Sec. 1. (1) The Oregon Criminal Justice Commission shall conduct a
study to determine whether it is possible to incorporate consideration of
reducing criminal conduct and the crime rate into the commission’s
sentencing guidelines and, if it is possible, the means of doing so. The
commission shall, to the greatest extent possible, conduct the study
using commission staff and resources.
(2) The chairperson of the commission shall establish a committee
pursuant to ORS 137.658 to assist the commission in conducting the study
required by subsection (1) of this section.
(3) The commission shall report the status of the study to the
appropriate interim legislative committee no later than June 30, 2006.
(4) The commission shall submit a final written report on the study
containing its findings and recommendations to the Seventy-fourth
Legislative Assembly no later than January 15, 2007. [2005 c.474 §1](1) The chairperson of the Oregon Criminal Justice Commission
may create any committees within the commission as the chairperson may
think necessary. Persons who are not commission members may be appointed
as members to serve on the committees with the approval of the commission.
(2) The chairperson shall appoint members of committees created
under this section in such a manner as to ensure representation from all
segments of the criminal justice system that are affected by the work of
the committee. In selecting members for committee assignments, the
chairperson shall consider, but is not limited to, representatives from
the following:
(a) The Attorney General;
(b) The Director of the Department of Corrections;
(c) The chairperson of the State Board of Parole and Post-Prison
Supervision;
(d) The Superintendent of State Police;
(e) The chief administrative employee of the Psychiatric Security
Review Board;
(f) The Director of Human Services;
(g) The Director of the Oregon Youth Authority;
(h) Trial judges;
(i) Judges of the Oregon Supreme Court or Court of Appeals;
(j) Majority and minority parties of the House of Representatives
and the Senate;
(k) District attorneys;
(L) Criminal defense attorneys;
(m) County sheriffs;
(n) County commissioners;
(o) County community corrections directors;
(p) Chiefs of police;
(q) Victims of crime;
(r) The public at large;
(s) The director of a nonprofit entity created for the purpose of
increasing understanding of the adult and juvenile justice systems and
promotion of effective policies for prevention and control of crime; and
(t) Private contract providers. [1995 c.420 §2; 1997 c.433 §3; 2001
c.900 §23]Note: See note under 137.651. All officers, boards,
commissions and other agencies of the State of Oregon shall cooperate
with the Oregon Criminal Justice Commission to accomplish the duties
imposed upon the Oregon Criminal Justice Commission. [1985 c.558 §6; 1995
c.420 §5]Note: See note under 137.651. The Oregon
Criminal Justice Commission Account is established separate and distinct
from the General Fund. All moneys received by the Oregon Criminal Justice
Commission, other than appropriations from the General Fund, and except
those moneys described in ORS 475A.160, shall be deposited into the
account and are continuously appropriated to the commission to carry out
the duties, functions and powers of the commission. [2001 c.716 §1]Note: See note under 137.651.(1) The Oregon Criminal Justice Commission shall
review all new legislation that creates new crimes or modifies existing
crimes. The commission shall adopt by rule any necessary modifications to
the crime seriousness scale of the guidelines to reflect the actions of
the Legislative Assembly and may classify offenses as person felonies or
person misdemeanors for purposes of the rules.
(2) The commission may adopt by majority vote of all of its members
who are eligible to vote amendments to the sentencing guidelines approved
by section 87, chapter 790, Oregon Laws 1989. The commission shall submit
the amendments to the Legislative Assembly for its approval. The
amendments do not become effective unless approved by the Legislative
Assembly by law. The effective date of the amendments is the date
specified by the Legislative Assembly in the law approving the amendments
or, if the Legislative Assembly does not specify a date, the effective
date of the law approving the amendments. The Legislative Assembly may by
law amend, repeal or supplement any of the amendments.
(3) The provisions of subsection (2) of this section do not apply
to amendments to the guidelines adopted by the commission that:
(a) Are required to implement enactments of the Legislative
Assembly;
(b) Are required under ORS 421.512 (2) or subsection (1) of this
section; or
(c)(A) Renumber rules or parts of rules, change internal references
to agree with statute or rule numbers, delete references to repealed
statutes or rules, substitute statute references for chapter numbers,
change capitalization and spelling for the purpose of uniformity or
correct manifest clerical, grammatical or typographical errors; and
(B) Do not alter the sense, meaning, effect or substance of the
rule amended.
(4) If a rule adopted under subsection (1) of this section is not
approved by the next regular Legislative Assembly following the adoption
of the rule, the rule is repealed on January 1 following adjournment sine
Note: See note under 137.651. The
guidelines adopted under ORS 137.667, together with any amendments,
supplements or repealing provisions, shall control the sentences for all
crimes committed after the effective date of such guidelines. Except as
provided in ORS 137.637 and 137.671, the incarcerative guidelines and any
other guidelines so designated by the Oregon Criminal Justice Commission
shall be mandatory and constitute presumptive sentences. [1987 c.619 §5;
1989 c.790 §95; 1995 c.420 §7; 1997 c.691 §4]Note: See note under 137.651.
(1) The court may impose a sentence outside the presumptive sentence or
sentence range made presumptive under ORS 137.669 for a specific offense
if it finds there are substantial and compelling reasons justifying a
deviation from the presumptive sentence.
(2) Whenever the court imposes a sentence outside the presumptive
sentence it shall set forth the reasons for its decision in the manner
required by rules of the Oregon Criminal Justice Commission. [1987 c.619
§6; 1989 c.790 §39; 1995 c.420 §8]Note: See note under 137.651. Rules adopted by the Oregon Criminal
Justice Commission shall not be declared invalid solely because of
irregularities in procedural rulemaking, including but not limited to the
provisions of ORS 183.335 or 183.400 (4)(c). [1989 c.790 §73; 1995 c.420
§9; 2001 c.220 §2; 2005 c.382 §3]Note: See note under 137.651.MANDATORY MINIMUM SENTENCES AND ADULT PROSECUTION OF 15-, 16- AND
17-YEAR-OLD OFFENDERS(1) When a person is convicted of one of the offenses listed
in subsection (2)(a) of this section and the offense was committed on or
after April 1, 1995, or of one of the offenses listed in subsection
(2)(b) of this section and the offense was committed on or after October
4, 1997, the court shall impose, and the person shall serve, at least the
entire term of imprisonment listed in subsection (2) of this section. The
person is not, during the service of the term of imprisonment, eligible
for release on post-prison supervision or any form of temporary leave
from custody. The person is not eligible for any reduction in, or based
on, the minimum sentence for any reason whatsoever under ORS 421.121 or
any other statute. The court may impose a greater sentence if otherwise
permitted by law, but may not impose a lower sentence than the sentence
specified in subsection (2) of this section.
(2) The offenses to which subsection (1) of this section applies
and the applicable mandatory minimum sentences are:
___________________________________________________________________________
___ (a)(A) Murder, as defined in
ORS 163.115............................... 300
months
(B) Attempt or conspiracy
to commit aggravated
murder, as defined
in ORS 163.095........................... 120
months
(C) Attempt or conspiracy
to commit murder, as
defined in ORS 163.115................ 90 months
(D) Manslaughter in the
first degree, as defined
in ORS 163.118........................... 120
months
(E) Manslaughter in the
second degree, as defined
in ORS 163.125............................. 75
months
(F) Assault in the first
degree, as defined in
ORS 163.185................................. 90
months
(G) Assault in the second
degree, as defined in
ORS 163.175................................. 70
months
(H) Kidnapping in the first
degree, as defined
in ORS 163.235............................. 90
months
(I) Kidnapping in the second
degree, as defined in
ORS 163.225................................. 70
months
(J) Rape in the first degree,
as defined in ORS 163.375......... 100 months
(K) Rape in the second degree,
as defined in ORS 163.365........... 75 months
(L) Sodomy in the first degree,
as defined in
ORS 163.405............................... 100
months
(M) Sodomy in the second
degree, as defined in
ORS 163.395................................. 75
months
(N) Unlawful sexual penetration
in the first degree, as
defined in ORS 163.411.............. 100 months
(O) Unlawful sexual penetration
in the second degree, as
defined in ORS 163.408................ 75 months
(P) Sexual abuse in the first
degree, as defined in
ORS 163.427................................. 75
months
(Q) Robbery in the first degree,
as defined in ORS 164.415........... 90 months
(R) Robbery in the second
degree, as defined in
ORS 164.405................................. 70
months
(b)(A) Arson in the first degree,
as defined in ORS 164.325,
when the offense represented
a threat of serious
physical injury................................
90 months
(B) Using a child in a display
of sexually explicit
conduct, as defined in
ORS 163.670................................. 70
months
(C) Compelling prostitution,
as defined in ORS 167.017........... 70 months
___________________________________________________________________________
___[1995 c.2 §1; 1995 c.421 §1; 1995 c.422 §47; 1997 c.852 §2]Note: 137.700 to 137.707 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 137 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation. (1)(a) As used in
this section and ORS 137.707:
(A) “Charged” means the filing of an accusatory instrument in a
court of criminal jurisdiction alleging the commission of an offense
listed in ORS 137.707.
(B) “Prosecuted” includes pretrial and trial procedures,
requirements and limitations provided for in criminal cases.
(b) Unless otherwise provided in ORS 137.707, ORS chapters 137 and
138 apply to proceedings under ORS 137.707.
(2)(a) Notwithstanding ORS 419B.100 and 419C.005, a person 15, 16
or 17 years of age at the time of committing the offense may be charged
with the commission of an offense listed in ORS 137.707 and may be
prosecuted as an adult.
(b) The district attorney shall notify the juvenile court and the
juvenile department when a person under 18 years of age is charged with
an offense listed in ORS 137.707.
(c) The filing of an accusatory instrument in a criminal court
under ORS 137.707 divests the juvenile court of jurisdiction in the
matter if juvenile court jurisdiction is based on the conduct alleged in
the accusatory instrument or any conduct arising out of the same act or
transaction. Upon receiving notice from the district attorney under
paragraph (b) of this subsection, the juvenile court shall dismiss,
without prejudice, the juvenile court proceeding and enter any order
necessary to transfer the matter or transport the person to the criminal
court for further proceedings. Nothing in this paragraph affects the
authority or jurisdiction of the juvenile court with respect to other
matters or conduct.
(3)(a) A person charged with a crime under ORS 137.707 who is 16 or
17 years of age shall be detained in custody in a jail or other place
where adults are detained subject to release on the same terms and
conditions as for adults.
(b) Notwithstanding paragraph (a) of this subsection, the sheriff
and the director of the county juvenile department may agree to detain
the person charged in a place other than the county jail.
(c) If a person charged with a crime under ORS 137.707 is under 16
years of age, the person may not be detained, either before conviction or
after conviction but before execution of the sentence, in a jail or other
place where adults are detained. [1995 c.422 §48]Note: See note under 137.700.(1)(a) Notwithstanding any other provision of law, when a
person charged with aggravated murder, as defined in ORS 163.095, or an
offense listed in subsection (4)(a) of this section is 15, 16 or 17 years
of age at the time the offense is committed, and the offense is committed
on or after April 1, 1995, or when a person charged with an offense
listed in subsection (4)(b) of this section is 15, 16 or 17 years of age
at the time the offense is committed, and the offense is committed on or
after October 4, 1997, the person shall be prosecuted as an adult in
criminal court.
(b) A district attorney, the Attorney General or a juvenile
department counselor may not file in juvenile court a petition alleging
that a person has committed an act that, if committed by an adult, would
constitute aggravated murder or an offense listed in subsection (4) of
this section if the person was 15, 16 or 17 years of age at the time the
act was committed.
(2) When a person charged under this section is convicted of an
offense listed in subsection (4) of this section, the court shall impose
at least the presumptive term of imprisonment provided for the offense in
subsection (4) of this section. The court may impose a greater
presumptive term if otherwise permitted by law, but may not impose a
lesser term. The person is not, during the service of the term of
imprisonment, eligible for release on post-prison supervision or any form
of temporary leave from custody. The person is not eligible for any
reduction in, or based on, the minimum sentence for any reason under ORS
421.121 or any other provision of law. ORS 138.012, 163.105 and 163.150
apply to sentencing a person prosecuted under this section and convicted
of aggravated murder under ORS 163.095 except that a person who was under
18 years of age at the time the offense was committed is not subject to a
sentence of death.
(3) The court shall commit the person to the legal and physical
custody of the Department of Corrections.
(4) The offenses to which this section applies and the presumptive
sentences are:
___________________________________________________________________________
___ (a)(A) Murder, as defined in
ORS 163.115............................... 300
months
(B) Attempt or conspiracy
to commit aggravated
murder, as defined
in ORS 163.095........................... 120
months
(C) Attempt or conspiracy
to commit murder, as
defined in ORS 163.115................ 90 months
(D) Manslaughter in the
first degree, as defined
in ORS 163.118........................... 120
months
(E) Manslaughter in the
second degree, as defined
in ORS 163.125............................. 75
months
(F) Assault in the first
degree, as defined
in ORS 163.185............................. 90
months
(G) Assault in the second
degree, as defined
in ORS 163.175............................. 70
months
(H) Kidnapping in the first
degree, as defined in
ORS 163.235................................. 90
months
(I) Kidnapping in the second
degree, as defined in
ORS 163.225................................. 70
months
(J) Rape in the first degree,
as defined in ORS 163.375......... 100 months
(K) Rape in the second
degree, as defined in
ORS 163.365................................. 75
months
(L) Sodomy in the first
degree, as defined in
ORS 163.405............................... 100
months
(M) Sodomy in the second
degree, as defined in
ORS 163.395................................. 75
months
(N) Unlawful sexual
penetration in the first
degree, as defined
in ORS 163.411........................... 100
months
(O) Unlawful sexual
penetration in the
second degree, as
defined in ORS 163.408................ 75 months
(P) Sexual abuse in the first
degree, as defined in
ORS 163.427................................. 75
months
(Q) Robbery in the first
degree, as defined in
ORS 164.415................................. 90
months
(R) Robbery in the second
degree, as defined in
ORS 164.405................................. 70
months
(b)(A) Arson in the first degree,
as defined in
ORS 164.325, when
the offense represented
a threat of serious
physical injury................................
90 months
(B) Using a child in a display
of sexually explicit
conduct, as defined in
ORS 163.670................................. 70
months
(C) Compelling prostitution,
as defined in ORS 167.017........... 70 months
___________________________________________________________________________
___ (5) If a person charged with an offense under this section is found
guilty of a lesser included offense and the lesser included offense is:
(a) An offense listed in subsection (4) of this section, the court
shall sentence the person as provided in subsection (2) of this section.
(b) Not an offense listed in subsection (4) of this section:
(A) But constitutes an offense for which waiver is authorized under
ORS 419C.349, the court, upon motion of the district attorney, shall hold
a hearing to determine whether to retain jurisdiction or to transfer the
case to juvenile court for disposition. In determining whether to retain
jurisdiction, the court shall consider the criteria for waiver in ORS
419C.349. If the court retains jurisdiction, the court shall sentence the
person as an adult under sentencing guidelines. If the court does not
retain jurisdiction, the court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and recommendations
that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile court
for disposition under ORS 419C.067 and 419C.411.
(B) And is not an offense for which waiver is authorized under ORS
419C.349, the court may not sentence the person. The court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and recommendations
that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile court
for disposition under ORS 419C.067 and 419C.411.
(6) When a person is charged under this section, other offenses
based on the same act or transaction shall be charged as separate counts
in the same accusatory instrument and consolidated for trial, whether or
not the other offenses are aggravated murder or offenses listed in
subsection (4) of this section. If it appears, upon motion, that the
state or the person charged is prejudiced by the joinder and
consolidation of offenses, the court may order an election or separate
trials of counts or provide whatever other relief justice requires.
(7)(a) If a person charged and tried as provided in subsection (6)
of this section is found guilty of aggravated murder or an offense listed
in subsection (4) of this section and one or more other offenses, the
court shall impose the sentence for aggravated murder or the offense
listed in subsection (4) of this section as provided in subsection (2) of
this section and shall impose sentences for the other offenses as
otherwise provided by law.
(b) If a person charged and tried as provided in subsection (6) of
this section is not found guilty of aggravated murder or an offense
listed in subsection (4) of this section, but is found guilty of one of
the other charges that constitutes an offense for which waiver is
authorized under ORS 419C.349, the court, upon motion of the district
attorney, shall hold a hearing to determine whether to retain
jurisdiction or to transfer the case to juvenile court for disposition.
In determining whether to retain jurisdiction, the court shall consider
the criteria for waiver in ORS 419C.349. If the court retains
jurisdiction, the court shall sentence the person as an adult under
sentencing guidelines. If the court does not retain jurisdiction, the
court shall:
(A) Order that a presentence report be prepared;
(B) Set forth in a memorandum any observations and recommendations
that the court deems appropriate; and
(C) Enter an order transferring the case to the juvenile court for
disposition under ORS 419C.067 and 419C.411. [1995 c.422 §49; 1995 c.421
§4; 1997 c.852 §3; 1999 c.1055 §12]Note: See note under 137.700. (1)(a)
Notwithstanding ORS 137.700 and 137.707, when a person is convicted of
manslaughter in the second degree as defined in ORS 163.125, assault in
the second degree as defined in ORS 163.175 (1)(b), kidnapping in the
second degree as defined in ORS 163.225, rape in the second degree as
defined in ORS 163.365, sodomy in the second degree as defined in ORS
163.395, unlawful sexual penetration in the second degree as defined in
ORS 163.408, sexual abuse in the first degree as defined in ORS 163.427
(1)(a)(A) or robbery in the second degree as defined in ORS 164.405, the
court may impose a sentence according to the rules of the Oregon Criminal
Justice Commission that is less than the minimum sentence that otherwise
may be required by ORS 137.700 or 137.707 if the court, on the record at
sentencing, makes the findings set forth in subsection (2) of this
section and finds that a substantial and compelling reason under the
rules of the Oregon Criminal Justice Commission justifies the lesser
sentence. When the court imposes a sentence under this subsection, the
person is eligible for a reduction in the sentence as provided in ORS
421.121 and any other statute.
(b) In order to make a dispositional departure under this section,
the court must make the following additional findings on the record:
(A) There exists a substantial and compelling reason not relied
upon in paragraph (a) of this subsection;
(B) A sentence of probation will be more effective than a prison
term in reducing the risk of offender recidivism; and
(C) A sentence of probation will better serve to protect society.
(2) A conviction is subject to subsection (1) of this section only
if the sentencing court finds on the record by a preponderance of the
evidence:
(a) If the conviction is for manslaughter in the second degree:
(A) That the defendant is the mother or father of the victim;
(B) That the death of the victim was the result of an injury or
illness that was not caused by the defendant;
(C) That the defendant treated the injury or illness solely by
spiritual treatment in accordance with the religious beliefs or practices
of the defendant and based on a good faith belief that spiritual
treatment would bring about the victim’s recovery from the injury or
illness;
(D) That no other person previously under the defendant’s care has
died or sustained significant physical injury as a result of or despite
the use of spiritual treatment, regardless of whether the spiritual
treatment was used alone or in conjunction with medical care; and
(E) That the defendant does not have a previous conviction for a
crime listed in subsection (4) of this section or for criminal
mistreatment in the second degree.
(b) If the conviction is for assault in the second degree:
(A) That the victim was not physically injured by means of a deadly
weapon;
(B) That the victim did not suffer a significant physical injury;
and
(C) That the defendant does not have a previous conviction for a
crime listed in subsection (4) of this section.
(c) If the conviction is for kidnapping in the second degree:
(A) That the victim was at least 12 years of age at the time the
crime was committed; and
(B) That the defendant does not have a previous conviction for a
crime listed in subsection (4) of this section.
(d) If the conviction is for robbery in the second degree:
(A) That the victim did not suffer a significant physical injury;
(B) That, if the defendant represented by words or conduct that the
defendant was armed with a dangerous weapon, the representation did not
reasonably put the victim in fear of imminent significant physical injury;
(C) That, if the defendant represented by words or conduct that the
defendant was armed with a deadly weapon, the representation did not
reasonably put the victim in fear of imminent physical injury; and
(D) That the defendant does not have a previous conviction for a
crime listed in subsection (4) of this section.
(e) If the conviction is for rape in the second degree, sodomy in
the second degree or sexual abuse in the first degree:
(A) That the victim was at least 12 years of age, but under 14
years of age, at the time of the offense;
(B) That the defendant does not have a prior conviction for a crime
listed in subsection (4) of this section;
(C) That the defendant has not been previously found to be within
the jurisdiction of a juvenile court for an act that would have been a
felony sexual offense if the act had been committed by an adult;
(D) That the defendant was no more than five years older than the
victim at the time of the offense;
(E) That the offense did not involve sexual contact with any minor
other than the victim; and
(F) That the victim’s lack of consent was due solely to incapacity
to consent by reason of being under 18 years of age at the time of the
offense.
(f) If the conviction is for unlawful sexual penetration in the
second degree:
(A) That the victim was 12 years of age or older at the time of the
offense;
(B) That the defendant does not have a prior conviction for a crime
listed in subsection (4) of this section;
(C) That the defendant has not been previously found to be within
the jurisdiction of a juvenile court for an act that would have been a
felony sexual offense if the act had been committed by an adult;
(D) That the defendant was no more than five years older than the
victim at the time of the offense;
(E) That the offense did not involve sexual contact with any minor
other than the victim;
(F) That the victim’s lack of consent was due solely to incapacity
to consent by reason of being under 18 years of age at the time of the
offense; and
(G) That the object used to commit the unlawful sexual penetration
was the hand or any part thereof of the defendant.
(3) In making the findings required by subsections (1) and (2) of
this section, the court may consider any evidence presented at trial and
may receive and consider any additional relevant information offered by
either party at sentencing.
(4) The crimes to which subsection (2)(a)(E), (b)(C), (c)(B),
(d)(D), (e)(B) and (f)(B) of this section refer are:
(a) A crime listed in ORS 137.700 (2) or 137.707 (4);
(b) Escape in the first degree, as defined in ORS 162.165;
(c) Aggravated murder, as defined in ORS 163.095;
(d) Criminally negligent homicide, as defined in ORS 163.145;
(e) Assault in the third degree, as defined in ORS 163.165;
(f) Criminal mistreatment in the first degree, as defined in ORS
163.205 (1)(b)(A);
(g) Rape in the third degree, as defined in ORS 163.355;
(h) Sodomy in the third degree, as defined in ORS 163.385;
(i) Sexual abuse in the second degree, as defined in ORS 163.425;
(j) Stalking, as defined in ORS 163.732;
(k) Burglary in the first degree, as defined in ORS 164.225, when
it is classified as a person felony under the rules of the Oregon
Criminal Justice Commission;
(L) Arson in the first degree, as defined in ORS 164.325;
(m) Robbery in the third degree, as defined in ORS 164.395;
(n) Intimidation in the first degree, as defined in ORS 166.165;
(o) Promoting prostitution, as defined in ORS 167.012; and
(p) An attempt or solicitation to commit any Class A or B felony
listed in paragraphs (a) to (L) of this subsection.
(5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced to
probation under this section violates a condition of probation by
committing a new crime, the court shall revoke the probation and impose
the presumptive sentence of imprisonment under the rules of the Oregon
Criminal Justice Commission.
(6) As used in this section:
(a) “Conviction” includes, but is not limited to:
(A) A juvenile court adjudication finding a person within the
court’s jurisdiction under ORS 419C.005, if the person was at least 15
years of age at the time the person committed the offense that brought
the person within the jurisdiction of the juvenile court.
(B) A conviction in another jurisdiction for a crime that if
committed in this state would constitute a crime listed in subsection (4)
of this section.
(b) “Previous conviction” means a conviction that was entered prior
to imposing sentence on the current crime provided that the prior
conviction is based on a crime committed in a separate criminal episode.
“Previous conviction” does not include a conviction for a Class C felony,
including an attempt or solicitation to commit a Class B felony, or a
misdemeanor, unless the conviction was entered within the 10-year period
immediately preceding the date on which the current crime was committed.
(c) “Significant physical injury” means a physical injury that:
(A) Creates a risk of death that is not a remote risk;
(B) Causes a serious and temporary disfigurement;
(C) Causes a protracted disfigurement; or
(D) Causes a prolonged impairment of health or the function of any
bodily organ. [1997 c.852 §1; 1999 c.614 §3; 1999 c.954 §2; 2001 c.851 §5]Note: The amendments to 137.712 by section 22, chapter 843, Oregon
Laws 2005, become operative July 1, 2007. See section 38, chapter 843,
Oregon Laws 2005. The text that is operative on and after July 1, 2007,
is set forth for the user’s convenience.
137.712. (1)(a) Notwithstanding ORS 137.700 and 137.707, when a
person is convicted of manslaughter in the second degree as defined in
ORS 163.125, assault in the second degree as defined in ORS 163.175
(1)(b), kidnapping in the second degree as defined in ORS 163.225, rape
in the second degree as defined in ORS 163.365, sodomy in the second
degree as defined in ORS 163.395, unlawful sexual penetration in the
second degree as defined in ORS 163.408, sexual abuse in the first degree
as defined in ORS 163.427 (1)(a)(A) or robbery in the second degree as
defined in ORS 164.405, the court may impose a sentence according to the
rules of the Oregon Criminal Justice Commission that is less than the
minimum sentence that otherwise may be required by ORS 137.700 or 137.707
if the court, on the record at sentencing, makes the findings set forth
in subsection (2) of this section and finds that a substantial and
compelling reason under the rules of the Oregon Criminal Justice
Commission justifies the lesser sentence. When the court imposes a
sentence under this subsection, the person is eligible for a reduction in
the sentence as provided in ORS 421.121 and any other statute.
(b) In order to make a dispositional departure under this section,
the court must make the following additional findings on the record:
(A) There exists a substantial and compelling reason not relied
upon in paragraph (a) of this subsection;
(B) A sentence of probation will be more effective than a prison
term in reducing the risk of offender recidivism; and
(C) A sentence of probation will better serve to protect society.
(2) A conviction is subject to subsection (1) of this section only
if the sentencing court finds on the record by a preponderance of the
evidence:
(a) If the conviction is for manslaughter in the second degree:
(A) That the defendant is the mother or father of the victim;
(B) That the death of the victim was the result of an injury or
illness that was not caused by the defendant;
(C) That the defendant treated the injury or illness solely by
spiritual treatment in accordance with the religious beliefs or practices
of the defendant and based on a good faith belief that spiritual
treatment would bring about the victim’s recovery from the injury or
illness;
(D) That no other person previously under the defendant’s care has
died or sustained significant physical injury as a result of or despite
the use of spiritual treatment, regardless of whether the spiritual
treatment was used alone or in conjunction with medical care; and
(E) That the defendant does not have a previous conviction for a
crime listed in subsection (4) of this section or for criminal
mistreatment in the second degree.
(b) If the conviction is for assault in the second degree:
(A) That the victim was not physically injured by means of a deadly
weapon;
(B) That the victim did not suffer a significant physical injury;
and
(C) That the defendant does not have a previous conviction for a
crime listed in subsection (4) of this section.
(c) If the conviction is for kidnapping in the second degree:
(A) That the victim was at least 12 years of age at the time the
crime was committed; and
(B) That the defendant does not have a previous conviction for a
crime listed in subsection (4) of this section.
(d) If the conviction is for robbery in the second degree:
(A) That the victim did not suffer a significant physical injury;
(B) That, if the defendant represented by words or conduct that the
defendant was armed with a dangerous weapon, the representation did not
reasonably put the victim in fear of imminent significant physical injury;
(C) That, if the defendant represented by words or conduct that the
defendant was armed with a deadly weapon, the representation did not
reasonably put the victim in fear of imminent physical injury; and
(D) That the defendant does not have a previous conviction for a
crime listed in subsection (4) of this section.
(e) If the conviction is for rape in the second degree, sodomy in
the second degree or sexual abuse in the first degree:
(A) That the victim was at least 12 years of age, but under 14
years of age, at the time of the offense;
(B) That the defendant does not have a prior conviction for a crime
listed in subsection (4) of this section;
(C) That the defendant has not been previously found to be within
the jurisdiction of a juvenile court for an act that would have been a
felony sexual offense if the act had been committed by an adult;
(D) That the defendant was no more than five years older than the
victim at the time of the offense;
(E) That the offense did not involve sexual contact with any minor
other than the victim; and
(F) That the victim’s lack of consent was due solely to incapacity
to consent by reason of being under 18 years of age at the time of the
offense.
(f) If the conviction is for unlawful sexual penetration in the
second degree:
(A) That the victim was 12 years of age or older at the time of the
offense;
(B) That the defendant does not have a prior conviction for a crime
listed in subsection (4) of this section;
(C) That the defendant has not been previously found to be within
the jurisdiction of a juvenile court for an act that would have been a
felony sexual offense if the act had been committed by an adult;
(D) That the defendant was no more than five years older than the
victim at the time of the offense;
(E) That the offense did not involve sexual contact with any minor
other than the victim;
(F) That the victim’s lack of consent was due solely to incapacity
to consent by reason of being under 18 years of age at the time of the
offense; and
(G) That the object used to commit the unlawful sexual penetration
was the hand or any part thereof of the defendant.
(3) In making the findings required by subsections (1) and (2) of
this section, the court may consider any evidence presented at trial and
may receive and consider any additional relevant information offered by
either party at sentencing.
(4) The crimes to which subsection (2)(a)(E), (b)(C), (c)(B),
(d)(D), (e)(B) and (f)(B) of this section refer are:
(a) A crime listed in ORS 137.700 (2) or 137.707 (4);
(b) Escape in the first degree, as defined in ORS 162.165;
(c) Aggravated murder, as defined in ORS 163.095;
(d) Criminally negligent homicide, as defined in ORS 163.145;
(e) Assault in the third degree, as defined in ORS 163.165;
(f) Criminal mistreatment in the first degree, as defined in ORS
163.205 (1)(b)(A);
(g) Rape in the third degree, as defined in ORS 163.355;
(h) Sodomy in the third degree, as defined in ORS 163.385;
(i) Sexual abuse in the second degree, as defined in ORS 163.425;
(j) Stalking, as defined in ORS 163.732;
(k) Burglary in the first degree, as defined in ORS 164.225, when
it is classified as a person felony under the rules of the Oregon
Criminal Justice Commission;
(L) Arson in the first degree, as defined in ORS 164.325;
(m) Robbery in the third degree, as defined in ORS 164.395;
(n) Intimidation in the first degree, as defined in ORS 166.165;
(o) Promoting prostitution, as defined in ORS 167.012; and
(p) An attempt or solicitation to commit any Class A or B felony
listed in paragraphs (a) to (L) of this subsection.
(5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced to
probation under this section violates a condition of probation by
committing a new crime, the court shall revoke the probation and impose
the presumptive sentence of imprisonment under the rules of the Oregon
Criminal Justice Commission.
(6) As used in this section:
(a) “Conviction” includes, but is not limited to:
(A) A juvenile court adjudication finding a person within the
court’s jurisdiction under ORS 419C.005, if the person was at least 15
years of age at the time the person committed the offense that brought
the person within the jurisdiction of the juvenile court. “Conviction”
does not include a juvenile court adjudication described in this
subparagraph if the person successfully asserted the defense set forth in
ORS 419C.522.
(B) A conviction in another jurisdiction for a crime that if
committed in this state would constitute a crime listed in subsection (4)
of this section.
(b) “Previous conviction” means a conviction that was entered prior
to imposing sentence on the current crime provided that the prior
conviction is based on a crime committed in a separate criminal episode.
“Previous conviction” does not include a conviction for a Class C felony,
including an attempt or solicitation to commit a Class B felony, or a
misdemeanor, unless the conviction was entered within the 10-year period
immediately preceding the date on which the current crime was committed.
(c) “Significant physical injury” means a physical injury that:
(A) Creates a risk of death that is not a remote risk;
(B) Causes a serious and temporary disfigurement;
(C) Causes a protracted disfigurement; or
(D) Causes a prolonged impairment of health or the function of any
bodily organ.Note: 137.712 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) When a court sentences a person convicted of:
(a) Aggravated theft in the first degree under ORS 164.057 or
burglary in the first degree under ORS 164.225, the presumptive sentence
is 19 months of incarceration, unless the rules of the Oregon Criminal
Justice Commission prescribe a longer presumptive sentence, if the person
has:
(A) A previous conviction for aggravated theft in the first degree
under ORS 164.057, burglary in the first degree under ORS 164.225,
robbery in the second degree under ORS 164.405 or robbery in the first
degree under ORS 164.415; or
(B) Four previous convictions for any combination of the other
crimes listed in subsection (2) of this section.
(b) Theft in the first degree under ORS 164.055, unauthorized use
of a vehicle under ORS 164.135, burglary in the second degree under ORS
164.215, criminal mischief in the first degree under ORS 164.365,
computer crime under ORS 164.377, forgery in the first degree under ORS
165.013, identity theft under ORS 165.800, possession of a stolen vehicle
under ORS 819.300 or trafficking in stolen vehicles under ORS 819.310,
the presumptive sentence is 13 months of incarceration, unless the rules
of the Oregon Criminal Justice Commission prescribe a longer presumptive
sentence, if the person has:
(A) A previous conviction for aggravated theft in the first degree
under ORS 164.057, unauthorized use of a vehicle under ORS 164.135,
burglary in the first degree under ORS 164.225, robbery in the second
degree under ORS 164.405, robbery in the first degree under ORS 164.415,
possession of a stolen vehicle under ORS 819.300 or trafficking in stolen
vehicles under ORS 819.310; or
(B) Four previous convictions for any combination of the other
crimes listed in subsection (2) of this section.
(2) The crimes to which subsection (1) of this section applies are:
(a) Theft in the second degree under ORS 164.045;
(b) Theft in the first degree under ORS 164.055;
(c) Aggravated theft in the first degree under ORS 164.057;
(d) Unauthorized use of a vehicle under ORS 164.135;
(e) Burglary in the second degree under ORS 164.215;
(f) Burglary in the first degree under ORS 164.225;
(g) Criminal mischief in the second degree under ORS 164.354;
(h) Criminal mischief in the first degree under ORS 164.365;
(i) Computer crime under ORS 164.377;
(j) Forgery in the second degree under ORS 165.007;
(k) Forgery in the first degree under ORS 165.013;
(L) Criminal possession of a forged instrument in the second degree
under ORS 165.017;
(m) Criminal possession of a forged instrument in the first degree
under ORS 165.022;
(n) Fraudulent use of a credit card under ORS 165.055;
(o) Identity theft under ORS 165.800;
(p) Possession of a stolen vehicle under ORS 819.300; and
(q) Trafficking in stolen vehicles under ORS 819.310.
(3) The court may impose a sentence other than the sentence
provided by subsection (1) of this section if the court imposes:
(a) A longer term of incarceration that is otherwise required or
authorized by law; or
(b) A departure sentence authorized by the rules of the Oregon
Criminal Justice Commission based upon findings of substantial and
compelling reasons. Unless the law or the rules of the Oregon Criminal
Justice Commission allow for imposition of a longer sentence, the maximum
departure allowed for a person sentenced under this subsection is double
the presumptive sentence provided in subsection (1) of this section.
(4) As used in this section, “previous conviction” includes:
(a) Convictions occurring before, on or after July 1, 2003; and
(b) Convictions entered in any other state or federal court for
comparable offenses.
(5)(a) For a crime committed on or after November 1, 1989, a
conviction is considered to have occurred upon the pronouncement of
sentence in open court. However, when sentences are imposed for two or
more convictions arising out of the same conduct or criminal episode,
none of the convictions is considered to have occurred prior to any of
the other convictions arising out of the same conduct or criminal episode.
(b) For a crime committed prior to November 1, 1989, a conviction
is considered to have occurred upon the pronouncement in open court of a
sentence or upon the pronouncement in open court of the suspended
imposition of a sentence.
(6) For purposes of this section, previous convictions must be
proven pursuant to ORS 137.079. [1996 c.3 §1; 1999 c.1022 §§2,4,7; 2001
c.784 §1]Note: 137.717 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1) The
presumptive sentence for a sex crime that is a felony is life
imprisonment without the possibility of release or parole if the
defendant has been sentenced for sex crimes that are felonies at least
two times prior to the current sentence.
(2) The court may impose a sentence other than the presumptive
sentence provided by subsection (1) of this section if the court imposes
a departure sentence authorized by the rules of the Oregon Criminal
Justice Commission based upon findings of substantial and compelling
reasons.
(3) For purposes of this section:
(a) Sentences for two or more convictions that are imposed in the
same sentencing proceeding are considered to be one sentence; and
(b) A prior sentence includes:
(A) Sentences imposed before, on or after July 31, 2001; and
(B) Sentences imposed by any other state or federal court for
comparable offenses.
(4) As used in this section, “sex crime” has the meaning given that
term in ORS 181.594. [2001 c.884 §4]Note: 137.719 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.
(1) When a court sentences a person convicted of:
(a) Manufacture of methamphetamine under ORS 475.886 or 475.888,
the court may not impose a sentence of optional probation or grant a
downward dispositional departure or a downward durational departure of
more than one-half of the presumptive prison sentence under the rules of
the Oregon Criminal Justice Commission if the person has a previous
conviction for:
(A) Delivery or manufacture of methamphetamine under ORS 475.840,
475.886 or 475.890;
(B) Delivery or manufacture of methamphetamine within 1,000 feet of
a school under ORS 475.888, 475.892 or 475.904; or
(C) Possession of a precursor substance with intent to manufacture
a controlled substance under ORS 475.967.
(b) Delivery of methamphetamine under ORS 475.890 or 475.892, the
court may not impose a sentence of optional probation or grant a downward
dispositional departure under the rules of the Oregon Criminal Justice
Commission if:
(A) The delivery involved a substantial quantity of methamphetamine
as described in ORS 475.900; and
(B) The person has a previous conviction for:
(i) Delivery or manufacture of methamphetamine under ORS 475.840,
475.886 or 475.890;
(ii) Delivery or manufacture of methamphetamine within 1,000 feet
of a school under ORS 475.888, 475.892 or 475.904; or
(iii) Possession of a precursor substance with intent to
manufacture a controlled substance under ORS 475.967.
(c) Delivery of methamphetamine under ORS 475.890 or 475.892, the
presumptive sentence is 19 months of incarceration, unless the rules of
the Oregon Criminal Justice Commission prescribe a longer presumptive
sentence, if the person has two or more previous convictions for any
combination of the following crimes:
(A) Delivery or manufacture of methamphetamine under ORS 475.840,
475.886 or 475.890;
(B) Delivery or manufacture of methamphetamine within 1,000 feet of
a school under ORS 475.888, 475.892 or 475.904; or
(C) Possession of a precursor substance with intent to manufacture
a controlled substance under ORS 475.967.
(2) The court may impose a sentence other than the sentence
provided by subsection (1) of this section if the court imposes:
(a) A longer term of incarceration that is otherwise required or
authorized by law; or
(b) An upward or downward durational departure sentence that is
authorized by law or the rules of the Oregon Criminal Justice Commission
based upon findings of substantial and compelling reasons unless
otherwise noted in subsection (1) of this section. Unless otherwise
authorized by law or rule of the Oregon Criminal Justice Commission, the
maximum departure allowed for a person sentenced under this subsection is
double the presumptive sentence provided in subsection (1) of this
section.
(3) As used in this section, “previous conviction” means:
(a) Convictions occurring before, on or after August 16, 2005; and
(b) Convictions entered in any other state or federal court for
comparable offenses.
(4)(a) For a crime committed on or after November 1, 1989, a
conviction is considered to have occurred upon the pronouncement of
sentence in open court. However, when sentences are imposed for two or
more convictions arising out of the same conduct or criminal episode,
none of the convictions is considered to have occurred prior to any of
the other convictions arising out of the same conduct or criminal episode.
(b) For a crime committed prior to November 1, 1989, a conviction
is considered to have occurred upon the pronouncement in open court of a
sentence or upon the pronouncement in open court of the suspended
imposition of a sentence.
(5) For purposes of this section, previous convictions must be
proven pursuant to ORS 137.079. [2005 c.708 §8]Note: 137.721 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 137 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.SENTENCING REQUIREMENTS CONCERNING DEFENDANT’S ELIGIBILITY FOR CERTAIN
TYPES OF LEAVE, RELEASE OR PROGRAMS(1) When a court
sentences a defendant to a term of incarceration upon conviction of a
crime, the court shall order on the record in open court as part of the
sentence imposed that the defendant may be considered by the executing or
releasing authority for any form of temporary leave from custody,
reduction in sentence, work release, alternative incarceration program or
program of conditional or supervised release authorized by law for which
the defendant is otherwise eligible at the time of sentencing, unless the
court finds on the record in open court substantial and compelling
reasons to order that the defendant not be considered for such leave,
release or programs.
(2) The executing or releasing authority may consider the defendant
for the programs described in subsection (1) of this section only upon
order of the sentencing court appearing in the judgment.
(3) As used in this section:
(a) “Executing or releasing authority” means the Department of
Corrections, State Board of Parole and Post-Prison Supervision,
Psychiatric Security Review Board, sentencing court or supervisory
authority.
(b) “Supervisory authority” has the meaning given that term in ORS
144.087. [1997 c.313 §14]Note: 137.750 to 137.754 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 137 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
(1) When a court commits a defendant to the custody of a supervisory
authority of a county under ORS 137.124, the court shall order on the
record in open court as part of the sentence imposed that the defendant
may be considered by the supervisory authority for any form of
alternative sanction authorized by ORS 423.478, unless the court finds on
the record in open court substantial and compelling reasons to order that
the defendant not be considered for alternative sanctions.
(2) The supervisory authority may consider the defendant for
alternative sanctions only upon order of the sentencing court appearing
in the judgment.
(3) As used in this section, “supervisory authority” has the
meaning given that term in ORS 144.087. [1997 c.313 §15]Note: See note under 137.750.Notwithstanding any other provision of law, a
sentencing court retains authority after entry of a judgment of
conviction to modify its judgment and sentence to comply with the
requirements of ORS 137.750 or 137.752 when:
(1) The judgment was entered on or after December 5, 1996;
(2) The crime of conviction was committed on or after December 5,
1996; and
(3) The judgment and sentence failed to comply with the provisions
of ORS 137.750 or 137.752. [1997 c.313 §16]Note: See note under 137.750.SEXUALLY VIOLENT DANGEROUS OFFENDERS(1) As used in this section:
(a) “History of sexual assault” means that a person has engaged in
unlawful sexual conduct that:
(A) Was not committed as part of the same criminal episode as the
crime for which the person is currently being sentenced; and
(B) Seriously endangered the life or safety of another person or
involved a victim under 12 years of age.
(b) “Sexually violent dangerous offender” means a person who has
psychopathic personality features, sexually deviant arousal patterns or
interests and a history of sexual assault and presents a substantial
probability of committing a crime listed in subsection (3) of this
section.
(2) Notwithstanding ORS 161.605, when a person is convicted of a
crime listed in subsection (3) of this section, in addition to any
sentence of imprisonment required by law, a court shall impose a period
of post-prison supervision that extends for the life of the person if:
(a) The person was 18 years of age or older at the time the person
committed the crime; and
(b) The person is a sexually violent dangerous offender.
(3) The crimes to which subsection (2) of this section applies are:
(a) Rape in the first degree and sodomy in the first degree if the
victim was:
(A) Subjected to forcible compulsion by the person;
(B) Under 12 years of age; or
(C) Incapable of consent by reason of mental defect, mental
incapacitation or physical helplessness;
(b) Unlawful sexual penetration in the first degree; and
(c) An attempt to commit a crime listed in paragraph (a) or (b) of
this subsection. [1999 c.163 §1; 2005 c.463 §11]Note: The amendments to 137.765 by section 16, chapter 463, Oregon
Laws 2005, become operative January 2, 2008. See section 20, chapter 463,
Oregon Laws 2005. The text that is operative on and after January 2,
2008, is set forth for the user’s convenience.
137.765. (1) As used in this section:
(a) “History of sexual assault” means that a person has engaged in
unlawful sexual conduct that:
(A) Was not committed as part of the same criminal episode as the
crime for which the person is currently being sentenced; and
(B) Seriously endangered the life or safety of another person or
involved a victim under 12 years of age.
(b) “Sexually violent dangerous offender” means a person who has
psychopathic personality features, sexually deviant arousal patterns or
interests and a history of sexual assault and who the court finds
presents a substantial probability of committing a crime listed in
subsection (3) of this section.
(2) Notwithstanding ORS 161.605, when a person is convicted of a
crime listed in subsection (3) of this section, in addition to any
sentence of imprisonment required by law, a court shall impose a period
of post-prison supervision that extends for the life of the person if:
(a) The person was 18 years of age or older at the time the person
committed the crime; and
(b) The court finds that the person is a sexually violent dangerous
offender.
(3) The crimes to which subsection (2) of this section applies are:
(a) Rape in the first degree and sodomy in the first degree if the
victim was:
(A) Subjected to forcible compulsion by the person;
(B) Under 12 years of age; or
(C) Incapable of consent by reason of mental defect, mental
incapacitation or physical helplessness;
(b) Unlawful sexual penetration in the first degree; and
(c) An attempt to commit a crime listed in paragraph (a) or (b) of
this subsection.Note: 137.765 to 137.771 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 137 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation. (1)(a) A court
shall order a presentence investigation and an examination of the
defendant by a psychiatrist or psychologist upon motion of the district
attorney if:
(A) The defendant is convicted of a crime listed in ORS 137.765
(3); and
(B) In the opinion of the court, there is reason to believe that
the defendant is a sexually violent dangerous offender as defined in ORS
137.765.
(b) The court may appoint one or more qualified psychiatrists or
psychologists to examine the defendant in the local correctional facility.
(2) The state shall pay all costs connected with an examination
under this section.
(3) The examination performed pursuant to this section must be
completed within 30 days if the defendant is in custody or within 60 days
if the defendant is not in custody. The court may order extensions not
exceeding 30 days. Each psychiatrist or psychologist appointed to examine
a defendant under this section shall file with the court a written report
of findings and conclusions, including an evaluation of whether the
defendant is predisposed to commit a crime listed in ORS 137.765 (3)
because the defendant has:
(a) Psychopathic personality features; and
(b) Sexually deviant arousal patterns or interests.
(4) No statement made by a defendant under this section may be used
against the defendant in any civil proceeding or in any other criminal
proceeding.
(5) Upon receipt of the examination and presentence reports the
court shall set a time for a sentence hearing. At the sentence hearing
the district attorney and the defendant may question any psychiatrist or
psychologist who examined the defendant pursuant to this section.
(6) If, after considering the evidence in the case or in the
sentence hearing, the jury or, if the defendant waives the right to a
jury trial, the court finds that the defendant is a sexually violent
dangerous offender, the court shall sentence the defendant as provided in
ORS 137.765.
(7) The fact that a person is a sexually violent dangerous offender
is an enhancement fact, as defined in section 1, chapter 463, Oregon Laws
2005, and sections 2 to 7, chapter 463, Oregon Laws 2005, apply to making
a determination of the fact. [1999 c.163 §3; 2005 c.463 §12]Note: The amendments to 137.767 by section 17, chapter 463, Oregon
Laws 2005, become operative January 2, 2008. See section 20, chapter 463,
Oregon Laws 2005. The text that is operative on and after January 2,
2008, is set forth for the user’s convenience.
137.767. (1)(a) A court shall order a presentence investigation and
an examination of the defendant by a psychiatrist or psychologist upon
motion of the district attorney if:
(A) The defendant is convicted of a crime listed in ORS 137.765
(3); and
(B) In the opinion of the court, there is reason to believe that
the defendant is a sexually violent dangerous offender as defined in ORS
137.765.
(b) The court may appoint one or more qualified psychiatrists or
psychologists to examine the defendant in the local correctional facility.
(2) The state shall pay all costs connected with an examination
under this section.
(3) The examination performed pursuant to this section must be
completed within 30 days if the defendant is in custody or within 60 days
if the defendant is not in custody. The court may order extensions not
exceeding 30 days. Each psychiatrist or psychologist appointed to examine
a defendant under this section shall file with the court a written report
of findings and conclusions, including an evaluation of whether the
defendant is predisposed to commit a crime listed in ORS 137.765 (3)
because the defendant has:
(a) Psychopathic personality features; and
(b) Sexually deviant arousal patterns or interests.
(4) No statement made by a defendant under this section may be used
against the defendant in any civil proceeding or in any other criminal
proceeding.
(5) Upon receipt of the examination and presentence reports the
court shall set a time for a sentence hearing. At the sentence hearing
the district attorney and the defendant may question any psychiatrist or
psychologist who examined the defendant pursuant to this section.
(6) If, after considering the presentence report, the examination
reports and the evidence in the case or in the sentence hearing, the
court finds that the defendant is a sexually violent dangerous offender,
the court shall sentence the defendant as provided in ORS 137.765.
(7) Unless the parties stipulate otherwise, the state has the
burden of proving beyond a reasonable doubt that the person is a sexually
violent dangerous offender.Note: See second note under 137.765. (1) When a
defendant is examined under ORS 137.767, the defendant may retain a
psychiatrist, psychologist or other expert to perform an examination on
the defendant’s behalf. A psychiatrist, psychologist or other expert
retained by the defendant must be provided reasonable access to:
(a) The defendant for the purpose of the examination; and
(b) All relevant medical and psychological records and reports.
(2) If the defendant is financially eligible for appointed counsel
at state expense, the defendant may request preauthorization to incur the
fees and expenses of a psychiatrist, psychologist or other expert as
provided in ORS 135.055 (3). [1999 c.163 §4; 2001 c.962 §97; 2003 c.449
§6]Note: See second note under 137.765.(1) No sooner than 10 years after a person sentenced under ORS
137.765 is released to post-prison supervision, the person may petition
the sentencing court for a resentencing hearing requesting that the
judgment be modified to terminate post-prison supervision. The district
attorney of the county must be named and served as a respondent in the
petition. The district attorney may file a response either in support of
or in opposition to the petition.
(2) Upon filing the petition, the court may order an examination as
provided in ORS 137.767. If the court orders an examination and the
petitioner is financially eligible for appointed counsel at state
expense, the court may appoint counsel for the petitioner, as provided in
ORS 135.050, if the court determines that there are substantial or
complex issues involved and the petitioner appears incapable of
self-representation.
(3) The court shall review the petition and may hold a hearing on
the petition. However, if the state opposes the petition, the court shall
hold a hearing on the petition. In determining whether to amend the
judgment, the court shall consider:
(a) The nature of the crime for which the petitioner was sentenced
to lifetime post-prison supervision;
(b) The degree of violence involved in the crime;
(c) The age of the victim;
(d) The petitioner’s prior history of sexual assault;
(e) Whether the petitioner continues to have psychopathic
personality features or sexually deviant arousal patterns or interests;
(f) Other criminal and relevant noncriminal behavior of the
petitioner before and after conviction;
(g) The period of time during which the petitioner has not
reoffended;
(h) Whether the petitioner has successfully completed a
court-approved sex offender treatment program; and
(i) Any other relevant factors.
(4) If the court finds by clear and convincing evidence that the
petitioner does not present a substantial probability of committing a
crime listed in ORS 137.765 (3), the court shall amend the judgment and
impose a lesser sentence.
(5) The sentencing court retains authority to modify its judgment
and sentence to reflect the results of a resentencing hearing ordered
under this section.
(6) Not less than five years after the denial of a petition under
this section, a person sentenced under ORS 137.765 may petition again for
a resentencing hearing under subsections (1) to (5) of this section.
[1999 c.163 §7; 2001 c.962 §98]Note: See second note under 137.765.
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