71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 795
House Bill 2378
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Oregon Criminal Defense Lawyers Association)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires that repayment of security deposited by person other
than defendant be applied only to obligations of defendant in
case for which security deposited.
A BILL FOR AN ACT
Relating to criminal procedure; amending ORS 25.715, 135.250 and
135.265.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 135.250 is amended to read:
135.250. (1) { + Except as provided in subsection (4) of this
section, + } if a defendant is released before judgment, the
conditions of the release agreement shall { - be that - }
{ + require that + } the defendant will:
(a) Appear to answer the charge in the court having
jurisdiction on a day certain and thereafter as ordered by the
court until the defendant is discharged or the judgment is
entered;
(b) Submit to the orders and process of the court;
(c) Not depart this state without leave of the court; and
(d) Comply with such other conditions as the court may impose.
(2)(a) In addition to the conditions listed in subsection (1)
of this section, if the defendant is charged with an offense that
also constitutes domestic violence, the court shall include as a
condition of the release agreement that the defendant not contact
the victim of the violence.
(b) Notwithstanding paragraph (a) of this subsection, the court
may enter an order waiving the condition that the defendant have
no contact with the victim if:
(A) The victim petitions the court for a waiver; and
(B) The court finds, after a hearing on the petition, that
waiving the condition is in the best interests of the parties and
the community.
(c) If the defendant was provided notice and an opportunity to
be heard, the court shall also include in the agreement, when
appropriate, terms and findings sufficient under 18 U.S.C. 922
(d)(8) and (g)(8) to affect the defendant's ability to possess
firearms and ammunition or engage in activities involving
firearms.
(d) ORS 107.720 applies to release agreements executed by
defendants charged with an offense that constitutes domestic
violence, except that proof of service of the release agreement
is not required and the agreement may not be terminated at the
request of the victim without a hearing.
(3) If the defendant is released after judgment of conviction,
the conditions of the release agreement shall be that the
defendant will:
(a) Duly prosecute the appeal of the defendant as required by
ORS 138.005 to 138.500;
(b) Appear at such time and place as the court may direct;
(c) Not depart this state without leave of the court;
(d) Comply with such other conditions as the court may impose;
and
(e) If the judgment is affirmed or the judgment is reversed and
the cause remanded for a new trial, immediately appear as
required by the trial court.
{ + (4) If a release agreement contains conditions relating
to refund of the security deposited to ensure the appearance of
the defendant, refund of the security deposited may be applied
only as follows:
(a) If a person other than the defendant deposited security on
behalf of the defendant, the refund of the security may be
applied only to security release costs, fines or other financial
obligations owed by the defendant in the case for which the
security was posted.
(b) If the defendant deposited security on behalf of the
defendant, the refund of the security may be applied to security
release costs, fines or any other financial obligations owed by
the defendant. + }
SECTION 2. ORS 135.265 is amended to read:
135.265. (1) If the defendant is not released on personal
recognizance under ORS 135.255, or granted conditional release
under ORS 135.260, or fails to agree to the provisions of the
conditional release, the magistrate shall set a security amount
that will reasonably assure the defendant's appearance. The
defendant shall execute the security release in the amount set by
the magistrate.
(2) The defendant shall execute a release agreement and deposit
with the clerk of the court before which the proceeding is
pending a sum of money equal to 10 percent of the security
amount, but in no event shall such deposit be less than $25. The
clerk shall issue a receipt for the sum deposited. Upon
depositing this sum the defendant shall be released from custody
subject to the condition that the defendant appear to answer the
charge in the court having jurisdiction on a day certain and
thereafter as ordered by the court until discharged or final
order of the court. Once security has been given and a charge is
pending or is thereafter filed in or transferred to a court of
competent jurisdiction the latter court shall continue the
original security in that court subject to ORS 135.280 and
135.285.
{ + (3) Except as provided in subsection (5) of this
section, + } when conditions of the release agreement have been
performed and the defendant has been discharged from all
obligations in the cause, the clerk of the court shall return to
the person shown by the receipt to have made the deposit, unless
the court orders otherwise, 85 percent of the sum which has been
deposited and shall retain as security release costs 15 percent,
but not less than $5 nor more than $200, of the amount deposited.
The interest that has accrued on the full amount deposited shall
also be retained by the clerk. The amount retained by the clerk
of a circuit court shall be paid over as directed by the State
Court Administrator for deposit in the Criminal Fine and
Assessment Account created under ORS 137.300. The amount retained
by a justice of the peace shall be deposited in the county
treasury. The amount retained by the clerk of a municipal court
shall be deposited in the municipal corporation treasury. At the
request of the defendant the court may order whatever amount is
repayable to defendant from such security amount to be paid to
defendant's attorney of record.
{ - (3) - } { + (4) + } Instead of the security deposit
provided for in subsection (2) of this section the defendant may
deposit with the clerk of the court an amount equal to the
security amount in cash, stocks, bonds, or real or personal
property situated in this state with equity not exempt owned by
the defendant or sureties worth double the amount of security set
by the magistrate. The stocks, bonds, real or personal property
shall in all cases be justified by affidavit. The magistrate may
further examine the sufficiency of the security as the magistrate
considers necessary.
{ + (5) If a court orders the clerk of the court to refund an
amount less than 85 percent under subsection (3) of this section,
the amount that is less than 85 percent may be applied only as
follows:
(a) If a person other than the defendant deposited the
security, the security may be applied toward amounts owed by the
defendant only in the case for which the security was posted.
(b) If the defendant deposited the security, the security may
be applied toward any financial obligations owed by the
defendant. + }
SECTION 3. ORS 25.715 is amended to read:
25.715. The court may order that the portion of a security
deposit made under ORS 135.265 that would otherwise be returned
to the { - person who made the deposit - } { + defendant + }
or the amount of child support arrearages, whichever is less, be
paid to an obligee or the Division of Child Support of the
Department of Justice if:
(1) The defendant is an obligor who owes child support
arrearages;
(2) The obligee, the district attorney or the division has
filed a motion requesting the court to make such an order;
(3) The obligee, the district attorney or the division has
served the defendant with a copy of the motion;
(4) The defendant has an opportunity to respond and request a
hearing; and
(5) The court has determined that such an order is appropriate.
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