74th OREGON LEGISLATIVE ASSEMBLY--2007 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 993
Senate Bill 129
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Attorney General Hardy
Myers for Attorney General's Restitution Reform Task Force)
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 court to consider likely amount of restitution award
in determining security amount and in deciding whether to refund
security amount. Requires court to apply security amount to
criminal judgment before refund. Provides for application of
forfeited security amount to criminal judgment.
A BILL FOR AN ACT
Relating to security release of defendant; amending ORS 135.265
and 135.280.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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. { + In
determining the appropriate security amount, the magistrate shall
consider the amount of restitution that is likely to be awarded
in the case. + } 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. 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. { + Prior to ordering
the return of an amount deposited as security, the court shall
inquire whether an award of restitution against the defendant is
likely in the case. If the court determines that an award of
restitution is likely, the court may refund the deposit only to
the extent that the amount of the refund exceeds the defendant's
likely eventual monetary obligations in the case, including the
award of restitution. + }
(3) 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.
SECTION 2. ORS 135.280 is amended to read:
135.280. (1) Upon failure of a person to comply with any
condition of a release agreement or personal recognizance, the
court having jurisdiction may, in addition to any other action
provided by law, issue a warrant for the arrest of the person at
liberty upon a personal recognizance, conditional or security
release.
(2) A warrant issued under subsection (1) of this section by a
municipal judge may be executed by any peace officer authorized
to execute arrest warrants.
(3) If the defendant does not comply with the conditions of the
release agreement, the court having jurisdiction shall enter an
order declaring the entire security amount to be forfeited.
Notice of the order of forfeiture shall be given forthwith by
personal service, by mail or by such other means as are
reasonably calculated to bring to the attention of the defendant
and, if applicable, of the sureties the order of forfeiture. If,
within 30 days after the court declares the forfeiture, the
defendant does not appear or satisfy the court having
jurisdiction that appearance and surrender by the defendant was,
or still is, impossible and without fault of the defendant, the
court shall enter judgment for the state, or appropriate
political subdivision thereof, against the defendant and, if
applicable, the sureties for the entire security amount set under
ORS 135.265 and the costs of the proceedings. At any time before
or after entry of the judgment, the defendant or the sureties may
apply to the court for a remission of the forfeiture or to modify
or set aside the judgment. The court, upon good cause shown, may
remit the forfeiture or any part thereof or may modify or set
aside the judgment as in other criminal cases, except the portion
of the security amount that the court ordered to be applied to
child support under subsection (4) { + (b) + } of this section,
as the court considers reasonable under the circumstances of the
case. The court shall adopt procedures to ensure that the amount
deposited under ORS 135.265 is available for a reasonable period
of time for disposition under subsection (4) of this section.
(4) After entry of a judgment for the state, the court { - ,
upon a motion filed under ORS 25.715, - } may order { + :
(a) + } That a portion of the security amount be applied to
{ + any unsatisfied monetary obligation, as described in ORS
137.295, that is appropriate for inclusion in the criminal
judgment; or
(b) Upon a motion filed under ORS 25.715, that a portion of the
security amount be applied to + } any unsatisfied child support
award owed by the defendant and to provide security for child
support payments in accordance with ORS 25.230. The portion of
the security amount that may be applied to the child support
award:
{ - (a) - } { + (A) + } Is limited to the amount deposited
under ORS 135.265;
{ - (b) - } { + (B) + } May not exceed the percentage of
the amount designated for distribution to the General Fund had
the deposit been transferred to the Criminal Fine and Assessment
Account as provided in subsection (5) of this section; and
{ - (c) - } { + (C) + } Does not reduce the money award in
the judgment entered under subsection (3) of this section that is
owed to the state.
(5) When judgment is entered in favor of the state, or any
political subdivision of the state, on any security given for a
release, the judgment may be enforced as a judgment in a civil
action. If entered in circuit court, the judgment shall be
entered in the register, and the clerk of the court shall note in
the register that the judgment creates a judgment lien. The
district attorney, county counsel or city attorney may have
execution issued on the judgment and deliver same to the sheriff
to be executed by levy on the deposit or security amount made in
accordance with ORS 135.265, or may collect the judgment as
otherwise provided by law. The proceeds of any execution or
collection shall be used to satisfy the judgment and costs and
paid into the treasury of the municipal corporation wherein the
security was taken if the offense was defined by an ordinance of
a political subdivision of this state, or paid into the treasury
of the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered
by a justice court, or paid over as directed by the State Court
Administrator for deposit in the Criminal Fine and Assessment
Account created under ORS 137.300, if the offense was defined by
a statute of this state and the judgment was entered by a circuit
court. The provisions of this section shall not apply to base
fine amounts deposited upon appearance under ORS 153.061.
(6) When the judgment of forfeiture is entered, the security
deposit or deposit with the clerk is, by virtue of the judgment
alone and without requiring further execution, forfeited to and
may be kept by the state or its appropriate political
subdivision. Except as provided in subsection (4) of this
section, the clerk shall reduce, by the value of the deposit so
forfeited, the debt remaining on the judgment and shall cause the
amount on deposit to be transferred to the revenue account of the
state or political subdivision thereof entitled to receive the
proceeds of execution under this section.
(7) The stocks, bonds, personal property and real property
shall be sold in the same manner as in execution sales in civil
actions and the proceeds of such sale shall be used to satisfy
all court costs, prior encumbrances, if any, and from the balance
a sufficient amount to satisfy the judgment shall be paid into
the treasury of the municipal corporation wherein the security
was taken if the offense was defined by an ordinance of a
political subdivision of this state, or paid into the treasury of
the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered
by a justice court, or deposited in the General Fund available
for general governmental expenses if the offense was defined by a
statute of this state and the judgment was entered by a circuit
court. The balance shall be returned to the owner. The real
property sold may be redeemed in the same manner as real estate
may be redeemed after judicial or execution sales in civil
actions.
SECTION 3. ORS 135.280, as amended by section 5, chapter 700,
Oregon Laws 2005, is amended to read:
135.280. (1) Upon failure of a person to comply with any
condition of a release agreement or personal recognizance, the
court having jurisdiction may, in addition to any other action
provided by law, issue a warrant for the arrest of the person at
liberty upon a personal recognizance, conditional or security
release.
(2) A warrant issued under subsection (1) of this section by a
municipal judge may be executed by any peace officer authorized
to execute arrest warrants.
(3) If the defendant does not comply with the conditions of the
release agreement, the court having jurisdiction shall enter an
order declaring the entire security amount to be forfeited.
Notice of the order of forfeiture shall be given forthwith by
personal service, by mail or by such other means as are
reasonably calculated to bring to the attention of the defendant
and, if applicable, of the sureties the order of forfeiture. If,
within 30 days after the court declares the forfeiture, the
defendant does not appear or satisfy the court having
jurisdiction that appearance and surrender by the defendant was,
or still is, impossible and without fault of the defendant, the
court shall enter judgment for the state, or appropriate
political subdivision thereof, against the defendant and, if
applicable, the sureties for the entire security amount set under
ORS 135.265 and the costs of the proceedings. At any time before
or after entry of the judgment, the defendant or the sureties may
apply to the court for a remission of the forfeiture or to modify
or set aside the judgment. The court, upon good cause shown, may
remit the forfeiture or any part thereof or may modify or set
aside the judgment as in other criminal cases, except the portion
of the security amount that the court ordered to be applied to
child support under subsection (4) { + (b) + } of this section,
as the court considers reasonable under the circumstances of the
case. The court shall adopt procedures to ensure that the amount
deposited under ORS 135.265 is available for a reasonable period
of time for disposition under subsection (4) of this section.
(4) After entry of a judgment for the state, the court { - ,
upon a motion filed under ORS 25.715, - } may order { + :
(a) + } That a portion of the security amount be applied to
{ + any unsatisfied monetary obligation, as described in ORS
137.295, that is appropriate for inclusion in the criminal
judgment; or
(b) Upon a motion filed under ORS 25.715, that a portion of the
security amount be applied to + } any unsatisfied child support
award owed by the defendant and to provide security for child
support payments in accordance with ORS 25.230. The portion of
the security amount that may be applied to the child support
award:
{ - (a) - } { + (A) + } Is limited to the amount deposited
under ORS 135.265;
{ - (b) - } { + (B) + } May not exceed 66 percent of the
entire security amount set under ORS 135.265; and
{ - (c) - } { + (C) + } Does not reduce the money award in
the judgment entered under subsection (3) of this section that is
owed to the state.
(5) When judgment is entered in favor of the state, or any
political subdivision of the state, on any security given for a
release, the judgment may be enforced as a judgment in a civil
action. If entered in circuit court, the judgment shall be
entered in the register, and the clerk of the court shall note in
the register that the judgment creates a judgment lien. The
district attorney, county counsel or city attorney may have
execution issued on the judgment and deliver same to the sheriff
to be executed by levy on the deposit or security amount made in
accordance with ORS 135.265, or may collect the judgment as
otherwise provided by law. The proceeds of any execution or
collection shall be used to satisfy the judgment and costs and
paid into the treasury of the municipal corporation wherein the
security was taken if the offense was defined by an ordinance of
a political subdivision of this state, or paid into the treasury
of the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered
by a justice court, or paid over as directed by the State Court
Administrator for deposit in the Criminal Fine and Assessment
Account created under ORS 137.300, if the offense was defined by
a statute of this state and the judgment was entered by a circuit
court. The provisions of this section shall not apply to base
fine amounts deposited upon appearance under ORS 153.061.
(6) When the judgment of forfeiture is entered, the security
deposit or deposit with the clerk is, by virtue of the judgment
alone and without requiring further execution, forfeited to and
may be kept by the state or its appropriate political
subdivision. Except as provided in subsection (4) of this
section, the clerk shall reduce, by the value of the deposit so
forfeited, the debt remaining on the judgment and shall cause the
amount on deposit to be transferred to the revenue account of the
state or political subdivision thereof entitled to receive the
proceeds of execution under this section.
(7) The stocks, bonds, personal property and real property
shall be sold in the same manner as in execution sales in civil
actions and the proceeds of such sale shall be used to satisfy
all court costs, prior encumbrances, if any, and from the balance
a sufficient amount to satisfy the judgment shall be paid into
the treasury of the municipal corporation wherein the security
was taken if the offense was defined by an ordinance of a
political subdivision of this state, or paid into the treasury of
the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered
by a justice court, or deposited in the General Fund available
for general governmental expenses if the offense was defined by a
statute of this state and the judgment was entered by a circuit
court. The balance shall be returned to the owner. The real
property sold may be redeemed in the same manner as real estate
may be redeemed after judicial or execution sales in civil
actions.
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