74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 258
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 Senate Interim Committee on
Judiciary)
CHAPTER ................
AN ACT
Relating to sentencing; amending ORS 40.015, 136.280, 137.765,
137.767, 161.725 and 161.735 and sections 7 and 21, chapter
463, Oregon Laws 2005; and repealing section 20, chapter 463,
Oregon Laws 2005.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 20, chapter 463, Oregon Laws 2005, is
repealed. + }
SECTION 2. ORS 40.015, as amended by section 13, chapter 463,
Oregon Laws 2005, and section 25, chapter 843, Oregon Laws 2005,
is amended to read:
40.015. (1) The Oregon Evidence Code applies to all courts in
this state except for:
(a) A hearing or mediation before a magistrate of the Oregon
Tax Court as provided by ORS 305.501;
(b) The small claims department of a circuit court as provided
by ORS 46.415; and
(c) The small claims department of a justice court as provided
by ORS 55.080.
(2) The Oregon Evidence Code applies generally to civil
actions, suits and proceedings, criminal actions and proceedings
and to contempt proceedings except those in which the court may
act summarily.
(3) ORS 40.225 to 40.295 relating to privileges apply at all
stages of all actions, suits and proceedings.
(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in
the following situations:
(a) The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by
the court under ORS 40.030.
(b) Proceedings before grand juries, except as required by ORS
132.320.
(c) Proceedings for extradition, except as required by ORS
133.743 to 133.857.
(d) Sentencing proceedings, except proceedings under ORS
138.012 and 163.150 { + , + } { - or - } as required by ORS
137.090 { + or proceedings under sections 2 to 7, chapter 463,
Oregon Laws 2005 + }.
Enrolled Senate Bill 258 (SB 258-INTRO) Page 1
(e) Proceedings to revoke probation, except as required by ORS
137.090.
(f) Issuance of warrants of arrest, bench warrants or search
warrants.
(g) Proceedings under ORS chapter 135 relating to conditional
release, security release, release on personal recognizance, or
preliminary hearings, subject to ORS 135.173.
(h) Proceedings to determine proper disposition of a child in
accordance with ORS 419B.325 (2) and 419C.400 (4).
(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230,
813.250 and 813.255 to determine whether a driving while under
the influence of intoxicants diversion agreement should be
allowed or terminated.
SECTION 3. Section 7, chapter 463, Oregon Laws 2005, is amended
to read:
{ + Sec. 7. + } (1) When an enhancement fact is tried to a
jury, any question relating to the enhancement fact shall be
submitted to the jury.
(2) The state has the burden of proving an enhancement fact
beyond a reasonable doubt.
(3) An enhancement fact that is tried to a jury is not proven
unless:
(a) The number of jurors who find that the state has met its
burden of proof with regard to the enhancement fact is equal to
or greater than the number of jurors that was required to find
the defendant guilty of the crime; and
(b) Of the jurors who find that the state has met its burden of
proof, at least the minimum number of jurors required by this
subsection to prove an enhancement fact are also jurors who found
the defendant guilty of the crime { + or alternate jurors as
provided by section 4 (5), chapter 463, Oregon Laws 2005 + }.
(4) An enhancement fact that is tried to the court is not
proven unless the court finds that the state has met its burden
of proof with regard to the enhancement fact.
(5) A finding relating to an enhancement fact made by a jury
during the trial or sentencing phase of a criminal proceeding may
not be reexamined by the court. Notwithstanding the findings made
by a jury relating to an enhancement fact, the court is not
required to impose an enhanced sentence.
SECTION 4. ORS 161.725, as amended by section 14, chapter 463,
Oregon Laws 2005, is amended to read:
161.725. (1) Subject to the provisions of ORS 161.737, the
maximum term of an indeterminate sentence of imprisonment for a
dangerous offender is 30 years, if { - the court finds that - }
because of the dangerousness of the defendant an extended period
of confined correctional treatment or custody is required for the
protection of the public and { - if it further finds, as
provided in ORS 161.735, that - } one or more of the following
grounds exist:
(a) The defendant is being sentenced for a Class A felony
{ - , and the court finds that - } { + and + } the defendant
is suffering from a severe personality disorder indicating a
propensity toward crimes that seriously endanger the life or
safety of another.
(b) The defendant is being sentenced for a felony that
seriously endangered the life or safety of another, the defendant
has been previously convicted of a felony not related to the
instant crime as a single criminal episode and { - the court
finds that - } the defendant is suffering from a severe
Enrolled Senate Bill 258 (SB 258-INTRO) Page 2
personality disorder indicating a propensity toward crimes that
seriously endanger the life or safety of another.
(c) The defendant is being sentenced for a felony that
seriously endangered the life or safety of another, the defendant
has previously engaged in unlawful conduct not related to the
instant crime as a single criminal episode that seriously
endangered the life or safety of another and { - the court
finds that - } the defendant is suffering from a severe
personality disorder indicating a propensity toward crimes that
seriously endanger the life or safety of another.
{ - (2) Unless the parties stipulate otherwise, the state has
the burden of proving beyond a reasonable doubt that the felonies
or unlawful conduct referred to in subsection (1)(b) and (c) of
this section seriously endangered the life and safety of
another. - }
{ - (3) - } { + (2) + } As used in this section,
'previously convicted of a felony' means:
(a) Previous conviction of a felony in a court of this state;
(b) Previous conviction in a court of the United States, other
than a court-martial, of an offense which at the time of
conviction of the offense was and at the time of conviction of
the instant crime is punishable under the laws of the United
States by death or by imprisonment in a penitentiary, prison or
similar institution for a term of one year or more; or
(c) Previous conviction by a general court-martial of the
United States or in a court of any other state or territory of
the United States, or of the Commonwealth of Puerto Rico, of an
offense which at the time of conviction of the offense was
punishable by death or by imprisonment in a penitentiary, prison
or similar institution for a term of one year or more and which
offense also at the time of conviction of the instant crime would
have been a felony if committed in this state.
{ - (4) - } { + (3) + } As used in this section, 'previous
conviction of a felony' does not include:
(a) An offense committed when the defendant was less than 16
years of age;
(b) A conviction rendered after the commission of the instant
crime;
(c) A conviction that is the defendant's most recent conviction
described in subsection { - (3) - } { + (2) + } of this
section, and the defendant was finally and unconditionally
discharged from all resulting imprisonment, probation or parole
more than seven years before the commission of the instant crime;
or
(d) A conviction that was by court-martial of an offense
denounced only by military law and triable only by court-martial.
{ - (5) - } { + (4) + } As used in this section,
'conviction' means an adjudication of guilt upon a plea, verdict
or finding in a criminal proceeding in a court of competent
jurisdiction, but does not include an adjudication which has been
expunged by pardon, reversed, set aside or otherwise rendered
nugatory.
SECTION 5. ORS 161.735, as amended by section 15, chapter 463,
Oregon Laws 2005, is amended to read:
161.735. (1) Upon motion of the district attorney, and if, in
the opinion of the court, there is reason to believe that the
defendant falls within ORS 161.725, the court shall order a
presentence investigation and an examination by a psychiatrist or
psychologist. The court may appoint one or more qualified
Enrolled Senate Bill 258 (SB 258-INTRO) Page 3
psychiatrists or psychologists to examine the defendant in the
local correctional facility.
(2) All costs connected with the examination shall be paid by
the state.
(3) The examination performed pursuant to this section shall be
completed within 30 days, subject to additional extensions not
exceeding 30 days on order of the court. Each psychiatrist and
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
suffering from a severe personality disorder indicating a
propensity toward criminal activity.
(4) No statement made by a defendant under this section or ORS
137.124 or 423.090 shall 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 presentence hearing, unless the
district attorney and the defendant waive the hearing. At the
presentence 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
presentence hearing, { + the jury or, if the defendant waives
the right to a jury trial, + } the court finds that the defendant
comes within ORS 161.725, the court may sentence the defendant as
a dangerous offender.
(7) In determining whether a defendant has been previously
convicted of a felony for purposes of ORS 161.725, the court
shall consider as prima facie evidence of the previous
conviction:
(a) A copy of the judicial record of the conviction which copy
is authenticated under ORS 40.510;
(b) A copy of the fingerprints of the subject of that
conviction which copy is authenticated under ORS 40.510; and
(c) Testimony that the fingerprints of the subject of that
conviction are those of the defendant.
(8) Subsection (7) of this section does not prohibit proof of
the previous conviction by any other procedure.
{ + (9) The facts required to be found to sentence a
defendant as a dangerous offender under this section are
enhancement facts, as defined in section 1, chapter 463, Oregon
Laws 2005, and sections 2 to 7, chapter 463, Oregon Laws 2005,
apply to making determinations of those facts. + }
SECTION 6. ORS 137.765, as amended by section 16, chapter 463,
Oregon Laws 2005, is amended to read:
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
Enrolled Senate Bill 258 (SB 258-INTRO) Page 4
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.
SECTION 7. ORS 137.767, as amended by section 17, chapter 463,
Oregon Laws 2005, is amended to read:
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 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.
Enrolled Senate Bill 258 (SB 258-INTRO) Page 5
{ - (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. - }
{ + (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. + }
SECTION 8. ORS 136.280, as amended by section 19, chapter 463,
Oregon Laws 2005, is amended to read:
136.280. If, before the final submission of the case, any juror
dies or is unable to perform the duty because of illness or other
cause which the court deems sufficient, the juror shall be
dismissed from the case. Except as provided by ORS 163.150, the
court shall cause to be drawn the name of an alternate juror, who
shall then become a member of the jury as though the alternate
juror had been selected as one of the original jurors.
{ + Except as provided in section 4 (5), chapter 463, Oregon
Laws 2005, + } any alternate juror not selected to become a
member of the jury shall be dismissed from the case upon its
final submission to the jury.
SECTION 9. Section 21, chapter 463, Oregon Laws 2005, is
amended to read:
{ + Sec. 21. + } Sections 1 to 7 { + , chapter 463, Oregon
Laws 2005, + } { - of this 2005 Act - } and the amendments to
ORS 40.015, 136.280, 137.765, 137.767, 161.725 and 161.735 by
sections 8 to 12 and 18 { + , chapter 463, Oregon Laws 2005, + }
{ - of this 2005 Act - } apply to:
(1) A criminal action commencing on or after { - the
effective date of this 2005 Act and before January 2, 2008 - }
{ + July 7, 2005 + };
(2) A criminal action commencing prior to { - the effective
date of this 2005 Act - } { + July 7, 2005, + } in which a
sentence has not been imposed prior to { - the effective date
of this 2005 Act - } { + July 7, 2005 + }; and
(3) A case that has been remanded to a trial court that will
result in resentencing for which a new sentence has not been
imposed prior to { - the effective date of this 2005 Act - }
{ + July 7, 2005 + }.
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Passed by Senate February 26, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House March 21, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 258 (SB 258-INTRO) Page 6
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 258 (SB 258-INTRO) Page 7