72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 614
House Bill 2068
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary 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.
Allows circuit court to stay any provision of sentence in
criminal case. Provides that court's order disposing of motion
for stay is subject to appeal.
A BILL FOR AN ACT
Relating to criminal procedure; amending ORS 135.285, 138.040,
138.050, 138.053 and 138.135.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 138.135 is amended to read:
138.135. (1) { + The circuit court shall stay + } a sentence
of confinement { - shall be stayed - } if an appeal is taken
and the defendant elects not to commence service of the sentence
or is released on security under ORS 135.230 to 135.290. If a
defendant is not released on security and elects not to commence
service of the sentence pending appeal, the defendant shall be
held in custody at the institution designated in the judgment
without execution of sentence, except as provided in ORS 138.145.
(2) { + If an appeal is taken, the circuit court may stay any
provision of a sentence and the Court of Appeals or the Supreme
Court may stay + }a sentence to pay a fine or a fine and
costs { + . + } { - , if an appeal is taken, may be stayed by
the circuit court, the Court of Appeals, or by the Supreme
Court - } { + In determining whether to grant a stay, the court
shall consider:
(a) The likelihood of the defendant prevailing on appeal;
(b) Whether the appeal is taken in good faith and not for
purpose of delay;
(c) The likelihood of irreparable harm to the defendant if the
stay is not granted; and
(d) The likelihood of harm to the victim or the public if the
stay is granted.
(3) If a court stays a sentence to pay a fine or a fine and
costs:
(a) The court may impose any + } { - upon such - } terms
{ - as - } { + on the stay that + } the court deems
proper { + ; and + } { - . - }
{ + (b) + } The court may require the defendant, pending
appeal, to deposit the whole or any part of the fine and costs
with the clerk of the circuit court, or to give bond for the
payment thereof, or to submit to an examination of assets, and it
may make any appropriate order to restrain the defendant from
dissipating the assets of the defendant.
{ - (3) - } { + (4) + } If a petition for review by the
Supreme Court is filed, { - any - } { + a + } stay
{ - shall remain - } { + remains + } in effect pending a final
disposition of the cause, unless otherwise ordered by the Supreme
Court.
SECTION 2. ORS 135.285 is amended to read:
135.285. (1) If circumstances concerning the defendant's
release change, the court, on its own motion or upon request by
the district attorney or defendant, may modify the release
agreement or the security release.
(2) After judgment of conviction in municipal or justice court,
the court shall order the original release agreement, and if
applicable, the security, to stand pending appeal, or deny,
increase or reduce the release agreement and the security.
{ - If a defendant appeals after judgment of conviction in
circuit court for any crime other than murder or treason, release
shall be discretionary. - }
SECTION 3. ORS 138.053 is amended to read:
138.053. (1) A judgment, or order of a court, if the order is
imposed after judgment, is subject to the appeal provisions and
limitations on review under ORS 138.040 and 138.050 if the
disposition includes any of the following:
(a) Imposition of a sentence on conviction.
(b) Suspension of imposition or execution of any part of a
sentence.
(c) Extension of a period of probation.
(d) Imposition or modification of a condition of probation or
of sentence suspension.
(e) Imposition or execution of a sentence upon revocation of
probation or sentence suspension.
{ + (f) Denial or granting of a stay of any part of a
sentence. + }
(2) A disposition described under subsection (1) of this
section is not subject to appeal after the expiration of the time
specified in ORS 138.071 for appealing from the judgment or order
imposing it, except as may be provided in ORS 138.510 to 138.680.
(3) Notwithstanding ORS 138.040 and 138.050, upon an appeal
from a judgment or order described in subsection (1)(e) of this
section, the appellate court may review the order that revoked
the defendant's probation or sentence suspension if the defendant
shows a colorable claim of error in the proceeding from which the
appeal is taken.
SECTION 4. ORS 138.040 is amended to read:
138.040. Except as provided under ORS 138.050, the defendant
may appeal to the Court of Appeals from a judgment or order
described under ORS 138.053 in a circuit court, and may
cross-appeal when the state appeals pursuant to ORS 138.060
(1)(c) or (2)(a). The following apply upon such appeal or
cross-appeal:
(1) The appellate court may review:
(a) Any decision of the court in an intermediate order or
proceeding.
(b) Any disposition described under ORS 138.053 as to whether
it:
(A) Exceeds the maximum allowable by law; { - or - }
(B) Is unconstitutionally cruel and unusual { + ; or
(C) In a disposition described under ORS 138.053 (1)(f),
constitutes abuse of judicial discretion + }.
(2) If the appellate court determines the disposition imposed
exceeds the maximum allowable by law { + , + } { - or - } is
unconstitutionally cruel and unusual { + or constitutes an abuse
of judicial discretion + }, the appellate court shall direct the
court from which the appeal is taken to impose the disposition
that should be imposed.
SECTION 5. ORS 138.050 is amended to read:
138.050. (1) Except as otherwise provided in ORS 135.335, a
defendant who has pleaded guilty or no contest may take an appeal
from a judgment or order described in ORS 138.053 only when the
defendant makes a colorable showing that the disposition:
(a) Exceeds the maximum allowable by law; { - or - }
(b) Is unconstitutionally cruel and unusual { + ; or
(c) If it is one described in ORS 138.053 (1)(f), constitutes
abuse of judicial discretion + }.
(2) If the judgment or order described under ORS 138.053 is in
the:
(a) Circuit court, the appeal shall be taken to the Court of
Appeals.
(b) Justice court or municipal court, the appeal shall be taken
to the circuit court for the county.
(3) On appeal under subsection (1) of this section, the
appellate court shall consider only whether the disposition:
(a) Exceeds the maximum allowable by law; { - or - }
(b) Is unconstitutionally cruel and unusual { + ; or
(c) If it is one described in ORS 138.053 (1)(f), constitutes
abuse of judicial discretion + }.
(4) If the appellate court determines the disposition imposed
does exceed the maximum allowable by law { + , + } { - or - }
is unconstitutionally cruel and unusual { + or constitutes abuse
of judicial discretion + }, the appellate court shall direct the
court from which the appeal is taken to impose the disposition
that should be imposed.
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