75th OREGON LEGISLATIVE ASSEMBLY--2009 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 596
Senate Bill 233
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)
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.
Creates procedures for crime victims to assert violation of
constitutional rights in criminal and juvenile delinquency
proceedings, including procedures authorizing expedited appeal,
suspension of matters related to asserted violation and Attorney
General intervention on behalf of State of Oregon. Requires court
to obtain information pertaining to victims' rights at certain
critical stages of proceeding.
Creates task force to review implementation of procedures.
Sunsets task force on June 30, 2013.
Authorizes Attorney General to adopt rules to create
nonjudicial process to effectuate crime victims' rights and
condition provision of victim assistance funds or support on
compliance with model rules, policies or procedures.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to crime victims' rights; creating new provisions;
amending ORS 40.015, 131.007, 135.245, 135.432, 136.295,
137.545, 144.108, 144.343, 147.417, 419A.004, 419C.261 and
419C.273; repealing ORS 135.406; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 19 of this 2009 Act:
(1) 'Authorized prosecuting attorney' means a prosecuting
attorney who, at the request of a victim, has agreed to assert
and enforce a right granted to the victim by section 42 or 43,
Article I of the Oregon Constitution.
(2) 'Claim' means the allegation and proposed remedy described
in section 6 (1) of this 2009 Act.
(3) 'Crime' includes an act committed by a person who is under
18 years of age that, if committed by an adult, would constitute
a misdemeanor or felony.
(4) 'Criminal proceeding' means an action at law in which a
person is alleged, or has been adjudicated, to have committed a
crime for which there is a victim and that is conducted in the
trial court before or after sentencing or disposition.
(5) 'Critical stage of the proceeding' means:
(a) Release hearings or hearings to modify the conditions of
release, except hearings concerning release decisions at
arraignment;
(b) Preliminary hearings;
(c) Hearings related to the rescheduling of trial;
(d) Hearings on motions or petitions:
(A) Conducted pursuant to ORS 40.210 or 135.139;
(B) To amend, dismiss or set aside a charge, conviction, order
or judgment; or
(C) To suppress or exclude evidence;
(e) Entry of guilty or no contest pleas;
(f) Trial;
(g) Restitution hearings;
(h) Sentencing;
(i) Probation violation or revocation hearings if the crime of
conviction is a felony or person Class A misdemeanor and the
victim has requested notice of the hearing from the prosecuting
attorney or the supervisory authority as defined in ORS 144.087;
(j) Hearings for relief from the requirement to report as a sex
offender;
(k) Hearings related to a deferred sentencing agreement;
(L) Hearings designated as a critical stage of the proceeding
in ORS 419C.273; and
(m) Any other stage of a criminal proceeding the court
determines is a critical stage of the proceeding for purposes of
section 42, Article I of the Oregon Constitution.
(6) 'Defendant' includes a person under 18 years of age alleged
to be within the jurisdiction of the juvenile court under ORS
chapter 419C.
(7) 'Plea hearing' means a hearing in which a defendant enters
a plea of guilty or no contest.
(8) 'Plea of guilty or no contest' includes:
(a) An admission by a person under 18 years of age that the
person is within the jurisdiction of the juvenile court; and
(b) If a juvenile court petition has been filed, entering into
a formal accountability agreement under ORS 419C.230 or entering
an authorized diversion program under ORS 419C.225.
(9) 'Prosecuting attorney' means a district attorney as defined
in ORS 131.005. In a criminal proceeding conducted in the
juvenile court, 'prosecuting attorney' includes the juvenile
department.
(10) 'Reasonable efforts to inform the victim' includes, but is
not limited to, providing information orally, in writing,
electronically or by mail to the victim's last known address.
(11) 'Sentencing hearing' includes the dispositional phase of a
juvenile delinquency proceeding under ORS chapter 419C.
(12) 'Trial court' includes the juvenile court.
(13) 'Victim' means any person determined by the prosecuting
attorney or the court to have suffered direct financial,
psychological or physical harm as a result of the crime alleged
in the criminal proceeding and, in the case of a victim who is a
minor, the legal guardian of the minor.
(14) 'Violent felony' means a felony in which there was actual
or threatened serious physical injury to a victim or a felony
sexual offense. + }
SECTION 2. { + (1) A victim may assert a claim under sections
1 to 19 of this 2009 Act personally, through an attorney or
through an authorized prosecuting attorney.
(2) If the defendant or victim is represented by counsel,
counsel for the defendant or victim shall be served or notified
in lieu of service on or notification to a defendant or victim
under sections 1 to 19 of this 2009 Act.
(3) A court may not charge a filing fee, service fee, motion
fee or hearing fee for a proceeding under sections 1 to 19 of
this 2009 Act.
(4) The time within which an act is to be done under sections 1
to 19 of this 2009 Act is determined under ORS 174.120 and
174.125.
(5) ORCP 17 applies to the provision of documents to the court
under sections 1 to 19 of this 2009 Act. + }
SECTION 3. { + (1) This section does not apply:
(a) In a juvenile delinquency proceeding; or
(b) In a criminal case in which no person has been determined
to be the victim of the crime.
(2) At the beginning of each critical stage of the proceeding:
(a) The prosecuting attorney shall inform the court whether the
victim is present.
(b) If the victim is not present, the prosecuting attorney
shall inform the court, based on the prosecuting attorney's
knowledge, whether the victim requested advance notice of any
critical stage of the proceeding and, if so, whether the victim:
(A) Was notified of the date, time and place of the proceeding;
(B) Was informed of the victim's rights implicated in the
proceeding; and
(C) Indicated an intention to attend the proceeding or
requested that the prosecuting attorney assert a particular right
associated with the proceeding and, if the victim made such a
request, whether the prosecuting attorney agreed to do so.
(3) Subsection (2) of this section does not apply in any
criminal proceeding in which the prosecuting attorney provides
the court with the notice described in subsection (4) of this
section.
(4) In all felony cases, no later than 21 days after the
defendant is arraigned on an indictment, waives indictment or is
held to answer following a preliminary hearing, the prosecuting
attorney shall provide the court with a notice of compliance with
victims' rights on a form prescribed by the Chief Justice of the
Supreme Court or on a substantially similar form that indicates
whether:
(a) The prosecuting attorney, a person known to the prosecuting
attorney or a member of the prosecuting attorney's staff made
reasonable efforts to inform the victim of the rights granted to
the victim by sections 42 (1)(a) to (f) and 43, Article I of the
Oregon Constitution;
(b) The charging instrument includes the name or pseudonym of
each victim known to the prosecuting attorney. If the charging
instrument does not include the name or pseudonym of each victim
known to the prosecuting attorney, the prosecuting attorney shall
identify any victim not included in the charging instrument,
unless it would be impractical to do so;
(c) The victim requested that the prosecuting attorney assert
and enforce a right granted to the victim by section 42 or 43,
Article I of the Oregon Constitution, and whether the prosecuting
attorney agreed to do so; and
(d) The victim requested to be informed in advance of any
critical stage of the proceeding.
(5) If the victim is present at a critical stage of the
proceeding, the prosecuting attorney shall inquire of the victim
whether the victim intends to assert a right granted to the
victim by section 42 or 43, Article I of the Oregon Constitution,
and shall report the results of that inquiry to the court. The
court may ask the victim for information about any aspect of the
rights granted to the victim by sections 42 and 43, Article I of
the Oregon Constitution.
(6)(a) Information provided to the court under subsection (2)
or (4) of this section may be based on information obtained from
a law enforcement agency, a member of the prosecuting attorney's
staff, the prosecuting attorney's file or an electronic data
system or other record keeping system regularly maintained by the
office of the prosecuting attorney.
(b) If the prosecuting attorney discovers that information
provided to the court under subsection (2) or (4) of this section
is no longer accurate, the prosecuting attorney shall orally
provide the court with updated information prior to or during the
critical stage of the proceeding that immediately follows the
discovery. + }
SECTION 4. { + (1) At the request of a victim, the prosecuting
attorney may request that the court schedule a hearing to
reconsider a release decision if:
(a) The victim did not have notice of, or an opportunity to be
heard at, a hearing in which the court released the defendant
from custody or reduced the defendant's security amount; and
(b) The victim's request is made no later than seven days after
the victim knew or reasonably should have known of the release
decision that is to be reconsidered.
(2) As used in this section, 'release decision' includes:
(a) Decisions made at arraignment; and
(b) Decisions made at hearings described in ORS 419C.273
(4)(b)(A) to (C). + }
SECTION 5. { + (1) Notwithstanding section 3 of this 2009 Act,
at the beginning of any plea hearing and any sentencing hearing,
the prosecuting attorney shall inform the court whether the
victim is present.
(2) In any case involving a defendant charged with a violent
felony:
(a) If the victim requests, the prosecuting attorney shall make
reasonable efforts to consult the victim regarding plea
discussions before making a final plea agreement.
(b) Before the court accepts a plea of guilty or no contest:
(A) If the victim is present, the court shall ask whether the
victim agrees or disagrees with the plea agreement as presented
to the court and whether the victim wishes to be heard regarding
the plea agreement.
(B) If the victim is not present, the court shall ask the
prosecuting attorney whether the victim requested to be notified
and consulted regarding plea negotiations. If the victim made
such a request, the court shall ask the prosecuting attorney
whether the victim agrees or disagrees with the plea agreement.
(c) If the court finds that the victim requested consultation
regarding plea negotiations and that the prosecuting attorney
failed to make reasonable efforts to consult with the victim, the
court shall direct the prosecuting attorney to make reasonable
efforts to consult with the victim and may not accept the plea
unless the court makes a finding on the record that the interests
of justice require the acceptance of the plea.
(3) Before the court imposes sentence, the court shall ask
whether the victim wishes to express the views described in ORS
137.013. + }
SECTION 6. { + (1) A victim who wishes to allege a violation
of a right granted to the victim in a criminal proceeding by
section 42 or 43, Article I of the Oregon Constitution, shall
inform the court within seven days of the date the victim knew or
reasonably should have known of the facts supporting the
allegation. The victim shall describe the facts supporting the
allegation and propose a remedy.
(2) The victim may inform the court of a claim:
(a) On a form prescribed by the Chief Justice of the Supreme
Court; or
(b) On the record in open court and in the presence of the
defendant and the prosecuting attorney.
(3) If the victim informs the court of a facially valid claim
on a form under subsection (2)(a) of this section, the court
shall promptly issue the order to show cause described in section
7 of this 2009 Act.
(4) If the victim informs the court of a facially valid claim
orally under subsection (2)(b) of this section and the court
determines:
(a) That each person entitled to notice of the claim and a
reasonable opportunity to be heard is present, the court shall
hold a hearing under section 11 of this 2009 Act as soon as
practicable; or
(b) That any person entitled to notice of the claim and a
reasonable opportunity to be heard is not present, the court
shall issue the order to show cause described in section 7 of
this 2009 Act.
(5) If the court determines that the victim has not alleged a
facially valid claim, the court shall enter an order dismissing
the claim. The order must:
(a) Include the reasons the claim was dismissed;
(b) Be without prejudice to file, within seven days from the
date the victim receives the order dismissing the claim, a
corrected claim for the sole purpose of correcting the deficiency
identified by the court; and
(c) Be in writing, unless the order is issued on the record in
open court in the presence of the victim, the prosecuting
attorney and the defendant. If the court issues the order orally
under this paragraph, the court shall issue a written order as
soon as practicable.
(6) If a victim informs the court of a claim orally and the
court does not immediately hear the matter, the court may require
the victim to complete the form described in subsection (2)(a) of
this section. + }
SECTION 7. { + (1)(a) Except as provided in subsection (3) of
this section, the victim or the prosecuting attorney shall
provide notice of a claim asserted by the victim to any person
the victim wishes to have bound by an order granting relief by
providing the person with a copy of the order to show cause
described in this section. The victim or prosecuting attorney
shall provide the court with a mailing address for any person the
victim or prosecuting attorney provides with a copy of the order
to show cause under this paragraph.
(b) An order granting relief under section 8 or 11 of this 2009
Act is not enforceable against, and has no legal effect on, any
person who did not receive notice or have knowledge of the claim
and did not have a reasonable opportunity to be heard regarding
the claim.
(2) Upon receipt of a facially valid claim under section 6 (3)
or (4)(b) of this 2009 Act, the court shall issue an order to
show cause why the victim should not be granted relief. The court
shall, after considering the requirements of section 11 (5)(a) of
this 2009 Act, include in the order to show cause the date:
(a) By which responses to the claim must be submitted to the
court; and
(b) On which the court will conduct a hearing on timely
responses to the claim.
(3) The court shall provide a copy of the order to show cause
and of the form described in section 6 (2)(a) of this 2009 Act,
if the form was completed, to:
(a) The victim;
(b) The prosecuting attorney; and
(c) The defendant.
(4)(a) If the court issues an order to show cause under this
section, a victim, the prosecuting attorney, the defendant or any
person against whom relief is requested may contest the claim by
filing a response with the court before the date specified in the
order under subsection (2)(a) of this section.
(b)(A) When a claim alleges a violation of a right granted to
the victim under section 42, Article I of the Oregon
Constitution, the prosecuting attorney may file an ex parte
response that includes an affidavit setting forth good cause to
suspend the rights established in section 42, Article I of the
Oregon Constitution.
(B) The court shall review the response and affidavit in
camera. If the court finds that the prosecuting attorney has a
good faith belief that the criminal proceeding involves a minor
victim or organized crime, as that term is defined in ORS
180.600, and the court finds good cause to suspend the rights
established in section 42, Article I of the Oregon Constitution,
the court shall enter an order suspending those rights. The order
may not include the facts that formed the basis of the
suspension.
(C) The prosecuting attorney shall make a reasonable effort to
provide notice of the suspension to the victim and the defendant.
(D) The response and affidavit described in this paragraph may
not be disclosed and must be sealed and made a part of the record
for purposes of appellate review. + }
SECTION 8. { + (1) If a response to the order to show cause
issued under section 7 of this 2009 Act is not timely filed, the
court shall:
(a) Make factual findings supported by the record; and
(b) Determine whether the factual findings constitute a
violation of a right granted to the victim by section 42 or 43,
Article I of the Oregon Constitution.
(2) If the court determines that the victim's rights:
(a) Have been violated, except as provided in paragraph (c) of
this subsection, the court shall issue an order after giving due
consideration to the proposed remedy.
(b) Have not been violated, the court shall issue an order
denying relief.
(c) Have been violated but that the Oregon Constitution or the
United States Constitution prohibits all appropriate remedies or
that the court has suspended the rights of the victim under
section 7 (4)(b) of this 2009 Act, the court shall issue an order
denying relief.
(3) The order issued under subsection (2) of this section must
be in writing and, except as provided in section 7 (4)(b)(B) of
this 2009 Act, must include the reasons relief was granted or
denied.
(4) The court shall provide a copy of the order issued under
subsection (2) of this section to the victim, the prosecuting
attorney, the defendant and any person against whom relief was
ordered at the mailing address provided under section 7 (1)(a) of
this 2009 Act. + }
SECTION 9. { + (1) A victim or prosecuting attorney who seeks
a determination of an issue involving a right granted by section
42 or 43, Article I of the Oregon Constitution, that will impact
the conduct of the trial shall file a motion within 35 days of
the arraignment, or of the defendant's entry of the initial plea
on an accusatory instrument, whichever is sooner, unless the
factual basis of the determination becomes known to the movant at
a later time and could not reasonably have been discovered
earlier, in which case the motion must be filed promptly.
(2) A defendant who seeks to challenge the designation of a
person as a victim shall:
(a) File a response to a claim under section 7 (4) of this 2009
Act; or
(b) File a motion within seven days after the date the victim
first exercises a right granted by section 42 or 43, Article I of
the Oregon Constitution, unless the court finds good cause to
allow the motion at a later time.
(3) A defendant who seeks to object to a victim's presence at
trial shall file a motion within 35 days of arraignment, or of
the defendant's entry of the initial plea on an accusatory
instrument, whichever is sooner, unless the factual basis of the
objection could not reasonably be discovered earlier, in which
case the motion must be filed promptly.
(4) The court shall conduct a hearing on a motion filed under
this section and rule on the motion as soon as practicable. The
court may not grant relief under subsection (2) or (3) of this
section unless the designation of a person as a victim or the
victim's presence at trial violates the Oregon Constitution or
the United States Constitution. + }
SECTION 10. { + (1) Pending the hearing described in section
11 of this 2009 Act, the court may reschedule any matter in the
criminal proceeding that may directly impact, or be directly
impacted by, the claim, a response filed under section 7 (4) of
this 2009 Act or a motion filed under section 9 of this 2009 Act.
All other matters in the criminal proceeding shall continue in
the ordinary course.
(2) In determining whether to reschedule a matter under
subsection (1) of this section, in addition to other factors the
court considers important, the court shall consider:
(a) The likelihood that the requested relief will be granted in
light of the support in fact and law for the relief, as shown in
the claim, the response filed under section 7 (4) of this 2009
Act or the motion filed under section 9 of this 2009 Act;
(b) Whether the claim, response or motion is made in good faith
and not for the purpose of delay;
(c) The nature of the harm to the victim, the prosecuting
attorney, the defendant, any person against whom relief is
requested and the public that will likely result from
rescheduling the matter;
(d) The rights guaranteed to the victim, the prosecuting
attorney, the defendant and any person against whom relief is
requested under the Oregon Constitution or the United States
Constitution and under Oregon statutory and decisional law; and
(e) Whether the defendant is in custody and, if so, whether the
defendant has expressly consented to a continuance of the trial
under ORS 136.290.
(3) A pretrial release decision may not be continued under this
section for more than 14 days.
(4) Unless the court finds good cause to continue the trial to
a later date, a trial may not be continued under this section for
more than 14 days. + }
SECTION 11. { + (1) A hearing on a claim, a response filed
under section 7 (4) of this 2009 Act or a motion filed under
section 9 of this 2009 Act shall be conducted in accordance with
this section.
(2) At the hearing, the court may receive evidence relevant to
the claim or motion.
(3) As to a particular fact at issue, the court shall find
against the person bearing the burden of persuasion unless the
person proves the fact by a preponderance of the evidence.
(4) If the court determines that the moving party:
(a) Is entitled to relief, the court shall, after giving due
consideration to the requested relief, issue an order.
(b) Is not entitled to relief or that the Oregon Constitution
or the United States Constitution prohibits all appropriate
relief, the court shall issue an order denying relief.
(5) An order issued under subsection (4) of this section must:
(a) Be issued within seven days from the date the court issued
an order to show cause under section 7 of this 2009 Act, if an
order to show cause was issued, unless the court finds good cause
to issue the order at a later date.
(b) Except as provided in section 7 (4)(b)(B) of this 2009 Act,
include the reasons relief was granted or denied.
(c) Be in writing unless the order is issued on the record in
open court. If the court issues the order orally under this
paragraph, the court shall issue a written order as soon as
practicable indicating whether relief was granted or denied.
(6) The court shall provide a copy of the order issued under
subsection (4) of this section to the victim, the prosecuting
attorney, the defendant, any person who filed a response under
section 7 (4) of this 2009 Act and any person against whom relief
was ordered at the mailing address provided under section 7
(1)(a) of this 2009 Act. + }
SECTION 12. { + (1) A remedy under sections 1 to 19 of this
2009 Act is waived if the remedy is requested:
(a) By a victim who had notice of a related claim and did
neither of the following:
(A) File a response under section 7 (4) of this 2009 Act; or
(B) Participate in a hearing under section 11 of this 2009 Act;
or
(b) By any person after:
(A) The date determined by the court under section 7 (2)(a) of
this 2009 Act if the person is filing a response;
(B) The period of time described in section 9 of this 2009 Act
if the person is filing a motion; or
(C) Former jeopardy attaches, unless a motion for new trial or
a motion in arrest of judgment is granted.
(2) Subsection (1) of this section does not apply to:
(a) Remedies that may be effectuated after the disposition of a
criminal proceeding;
(b) The right to obtain information described in section 42
(1)(b), Article I of the Oregon Constitution;
(c) The right to receive prompt restitution described in
section 42 (1)(d), Article I of the Oregon Constitution;
(d) The right to have a copy of a transcript described in
section 42 (1)(e), Article I of the Oregon Constitution; or
(e) Remedies requested in a subsequent criminal proceeding
arising after a state or federal court has granted a new trial or
sentencing, provided the remedy is not waived pursuant to
subsection (1) of this section in the subsequent criminal
proceeding. + }
SECTION 13. { + (1)(a) Notwithstanding any other provision of
law and except as provided in paragraph (b) of this subsection,
appellate review of an order issued under section 6, 8 or 11 of
this 2009 Act shall be solely as provided in this section and
sections 14, 15 and 16 of this 2009 Act.
(b) A defendant who seeks to appeal an order issued under
section 6, 8 or 11 of this 2009 Act must do so in the manner
provided for appeals in ORS chapter 138. The provisions of this
section and sections 14, 15 and 16 of this 2009 Act do not apply
to an appeal under ORS chapter 138.
(c) Nothing in sections 1 to 19 of this 2009 Act affects the
ability of a defendant to petition for a writ of mandamus.
(2) Jurisdiction for appellate review of an order issued under
section 6, 8 or 11 of this 2009 Act is vested originally and
exclusively in the Supreme Court.
(3) Subject to section 16 of this 2009 Act, the jurisdiction of
the Supreme Court is limited to the order for which appellate
review is sought and the trial court retains jurisdiction over
all other matters in the criminal proceeding.
(4) Appellate review of an order issued under section 6, 8 or
11 of this 2009 Act shall be as provided in:
(a) Section 14 of this 2009 Act if the order was issued under
section 8 or 11 of this 2009 Act in a criminal proceeding in
which a defendant is charged with a felony or a person Class A
misdemeanor, as that term is defined by rule of the Oregon
Criminal Justice Commission, and the order arises from a motion
or claim alleging a violation that occurred prior to the
pronouncement in open court of the sentence or disposition after
a plea, admission or trial in the criminal proceeding.
(b) Section 15 of this 2009 Act in all appeals arising under
sections 1 to 19 of this 2009 Act except those described in
paragraph (a) of this subsection.
(5) The victim, the prosecuting attorney or any person against
whom relief was ordered has standing to seek appellate review of
an order unless, after notice and a reasonable opportunity to be
heard on the claim or motion that resulted in the order or a
related claim or motion, the person seeking appellate review did
none of the following:
(a) Inform the court of a claim.
(b) File a response under section 7 (4) of this 2009 Act.
(c) File a motion under section 9 of this 2009 Act.
(d) Participate in a hearing under section 11 of this 2009
Act. + }
SECTION 14. { + (1) Appellate review of an order described in
section 13 (4)(a) of this 2009 Act must be initiated by filing a
notice of interlocutory appeal with the Supreme Court
substantially in the form prescribed by rule of the Supreme
Court. Review of the order is a matter of right.
(2) The person filing the notice of interlocutory appeal shall
be identified as the appellant and the defendant shall be
identified as the respondent. Any other person described in
subsection (6)(a) to (f) of this section who is a party to the
appeal shall be identified as a respondent.
(3) The notice of interlocutory appeal must contain:
(a) A designation of those portions of the trial court record,
including oral proceedings, to be included in the record on
appeal; and
(b) A statement of why the notice is timely.
(4) The appellant shall include with the notice of
interlocutory appeal the following materials:
(a) A copy of the order for which appellate review is sought,
which must be attached to the notice.
(b) Excerpts of the record necessary to determine the question
presented and the relief sought. An excerpt of record must
include a copy of the form described in section 6 (2)(a) of this
2009 Act, if the form was completed and provided to the trial
court.
(c) A memorandum of law containing:
(A) A concise but complete statement of facts material to a
determination of the question presented and the relief sought;
and
(B) Supporting arguments and citations of authority.
(5) The Supreme Court may:
(a) Direct a party to the appeal to supplement the record with
a copy of additional parts of the record or a transcript of the
parts of the oral proceedings in the trial court necessary to
determine the question presented and the relief sought; or
(b) Direct the trial court administrator to forward all or part
of the trial court record.
(6) The appellant shall serve a copy of the notice of
interlocutory appeal and the accompanying materials described in
subsection (4) of this section on the following other persons:
(a) The victim who asserted the claim that resulted in the
order being appealed and any victim who asserted a related claim;
(b) Any person who filed a response under section 7 (4) of this
2009 Act to the claim that resulted in the order being appealed
or a related claim;
(c) Any person who filed the motion that resulted in the order
being appealed or a related motion under section 9 of this 2009
Act;
(d) Any person against whom relief was sought in the hearing
that resulted in the order being appealed or a related hearing
under section 11 of this 2009 Act;
(e) The prosecuting attorney;
(f) The Attorney General;
(g) The defendant; and
(h) The office of public defense services established under ORS
151.216, if the defendant is represented by appointed counsel.
(7) The appellant shall serve a copy of the notice of
interlocutory appeal on:
(a) The trial court administrator; and
(b) The trial court transcript coordinator, if the notice of
interlocutory appeal contains a designation of the oral
proceedings before the trial court as part of the record on
appeal.
(8)(a) Except as otherwise provided in this subsection, the
appellant shall serve and file the notice of interlocutory appeal
and, if applicable, the accompanying materials described in
subsection (4) of this section within seven days after the date
the trial court issued the order being appealed.
(b) The appellant shall serve the prosecuting attorney and the
Attorney General so that the copy of the notice of interlocutory
appeal and accompanying materials are received on the same day
the notice is filed with the Supreme Court.
(c) Except as provided in paragraph (b) of this subsection, the
appellant shall serve all persons described in subsections (6)
and (7) of this section so that the copy of the notice of
interlocutory appeal and, if applicable, accompanying materials
are received no later than one judicial day after the notice is
filed.
(9) Within three days after receipt of a notice of
interlocutory appeal that contains a designation of record under
subsection (3) of this section, the trial court administrator
shall forward to the Supreme Court an audio record of the
designated oral proceedings.
(10) If the Supreme Court directs a party to provide a
transcript of oral proceedings under subsection (5) of this
section, the party shall provide the transcript to the Supreme
Court within seven days after the date of the Supreme Court's
order.
(11)(a) The following requirements are jurisdictional and may
not be waived or extended:
(A) The timely filing of the original notice of interlocutory
appeal and accompanying materials described in subsection (4) of
this section with the Supreme Court; and
(B) The service of the notice of interlocutory appeal within
the time limits described in subsection (8) of this section on
all persons identified in subsection (6) of this section.
(b) Failure to timely serve a true and complete copy of the
accompanying materials described in subsection (4) of this
section is not jurisdictional, provided that the appellant made a
good faith effort to do so and substantially complied with those
requirements.
(c) Notwithstanding paragraph (b) of this subsection, the
Supreme Court may dismiss the appeal as to any respondent if the
appellant, after receipt of a notice of noncompliance, does not
promptly cure a deficiency in the materials or if the failure to
timely serve a true and complete copy of the accompanying
materials substantially prejudices the respondent's ability to
respond to the appeal.
(12) A respondent may file a response, which must be filed
within seven days after the date the notice of interlocutory
appeal is filed with the Supreme Court.
(13)(a) Except as provided in paragraph (b) of this subsection,
the appellant may not file a reply.
(b) If the Supreme Court determines that the case is unusually
complex, due to the number of persons involved or the existence
of novel questions of law, and the court would benefit from
additional briefing, the court may extend the briefing schedule
described in this section and allow the appellant to file a
reply.
(14) The appellant or respondent may request oral argument.
The Supreme Court may grant or deny a request for oral argument
or order oral argument on its own motion.
(15) At any time after submission of the appellant's memorandum
of law, the Supreme Court, on its own motion or on the motion of
the respondent, may summarily affirm the trial court's order,
with or without the submission of a response or oral argument, if
the Supreme Court determines that the appeal does not present a
substantial question of law. A motion for summary affirmance has
no effect on the timelines described in this section.
(16)(a) Except as provided in paragraph (b) of this subsection,
the Supreme Court shall issue its decision on appeal under this
section within 21 days after the date the notice of interlocutory
appeal is filed.
(b) The Supreme Court may issue a final decision beyond
the 21-day period if the court determines that the ends of
justice served by issuing a final decision at a later date
outweigh the best interests of the victim, the prosecuting
attorney, the defendant, any person against whom relief was
ordered and the public.
(c) In making the determination under paragraph (b) of this
subsection, the Supreme Court shall consider:
(A) Whether the case is unusually complex, due to the number of
persons involved or the existence of novel questions of law, and
whether 21 days is an unreasonable amount of time for the court
to issue a decision; and
(B) Whether the failure to extend the 21-day period would be
likely to result in a miscarriage of justice.
(17) Appellate review under this section is confined to the
record. The Supreme Court may not substitute its judgment for
that of the trial court as to any issue of fact and shall review
challenges to a factual finding for evidence in the record to
support the finding. The Supreme Court shall review for errors of
law and, when the law delegates discretion to the trial court,
determine whether the trial court's exercise of discretion was
outside the range of discretion delegated to the trial court.
(18) The Supreme Court may affirm, modify, reverse or remand
the trial court's order. The court may reverse or remand the
order only if it finds that the order is unlawful in substance or
procedure and that the substantial rights of the appellant were
prejudiced as a result.
(19) Notwithstanding any other provision of law, a notice of
interlocutory appeal and the response described in subsection
(12) of this section are filed under this section when those
documents are physically received by the Supreme Court or, if the
documents are filed electronically, as provided by rule of the
Chief Justice of the Supreme Court. + }
SECTION 15. { + Appellate review of an order described in
section 13 (4)(b) of this 2009 Act shall be as provided in
section 14 of this 2009 Act, except that:
(1) The Supreme Court's jurisdiction is discretionary. The
court may by rule prescribe the criteria the court will use to
decide whether to grant review. The initiating document is a
petition for review, but the petition must be accompanied by the
same materials described in section 14 (4) of this 2009 Act, and
the person seeking review shall be identified as the petitioner.
(2) The respondent may elect not to file a response until after
the Supreme Court has decided to accept review, in which case the
response must be filed within seven days after the Supreme Court
issues an order granting review.
(3) Section 14 (15) of this 2009 Act does not apply to review
under this section. The Supreme Court may dismiss a review
improvidently granted.
(4)(a) Except as provided in paragraph (b) of this subsection,
the Supreme Court shall issue its decision on appeal under this
section within 21 days after the date the court issued the order
granting review.
(b) The Supreme Court may issue a final decision beyond
the 21-day period if the court determines that the ends of
justice served by issuing a final decision at a later date
outweigh the best interests of the victim, the prosecuting
attorney, the defendant, any person against whom relief was
ordered and the public. + }
SECTION 16. { + (1) The trial court shall stay for a period of
21 days all matters that directly impact, or are directly
impacted by, the order on appeal:
(a) Upon receipt of a notice of interlocutory appeal under
section 14 of this 2009 Act; or
(b) Upon the issuance of an order granting review under section
15 of this 2009 Act.
(2) The Supreme Court may extend or reduce the length of or
vacate the stay on its own motion or on the motion of a victim,
prosecuting attorney, defendant or any person against whom relief
was ordered.
(3) In making the determination described in subsection (2) of
this section, in addition to other factors the Supreme Court
considers important, the court shall consider:
(a) The likelihood that the appellant will prevail on appeal in
light of the support in fact and law for the appeal;
(b) Whether the appeal is taken in good faith and not for the
purpose of delay;
(c) The nature of the harm to the victim, the prosecuting
attorney, the defendant, any person against whom relief was
ordered and the public that will likely result from the grant or
denial of a stay;
(d) The rights guaranteed to the victim, the prosecuting
attorney, the defendant and any person against whom relief was
ordered under the Oregon Constitution or the United States
Constitution and under Oregon statutory and decisional law; and
(e) Whether the defendant is in custody and, if so, whether the
defendant has expressly consented to a continuance of the trial
under ORS 136.290. + }
SECTION 17. { + (1)(a) Prior to the Attorney General's first
appearance in an appellate court proceeding in which the State of
Oregon is a party and to which section 42 or 43, Article I of the
Oregon Constitution, applies, the Attorney General shall
determine whether the Department of Justice has taken all
reasonably practicable steps to fulfill the rights granted by
sections 42 and 43, Article I of the Oregon Constitution, to the
victim of the crime in the appellate courts.
(b) Unless otherwise provided by rule or order of the Chief
Justice of the Supreme Court, the Attorney General shall, in the
cases described in paragraph (a) of this subsection, certify the
results of that determination to the court simultaneously with
the Attorney General's first appearance.
(2) The Attorney General may intervene at any time on behalf of
the State of Oregon in any trial or appellate court proceeding
arising under sections 1 to 19 of this 2009 Act. + }
SECTION 18. { + (1) The Chief Justice of the Supreme Court
may, by rule or order, establish requirements and procedures
necessary to comply with the provisions of sections 1 to 19 of
this 2009 Act.
(2) The Chief Justice of the Supreme Court shall prescribe the
forms described in sections 3 (4) and 6 (2)(a) of this 2009 Act.
The form described in section 6 (2)(a) of this 2009 Act must
allow a victim to designate an alternate mailing address or to
substitute a person to receive notice or service on behalf of the
victim for the purposes of sections 1 to 19 of this 2009 Act. + }
SECTION 19. { + (1) Sections 1 to 19 of this 2009 Act
effectuate the provisions of sections 42 and 43, Article I of the
Oregon Constitution, for violations that occur in criminal
proceedings and do not provide a remedy for violations that occur
in any other proceeding. A remedy for a violation of section 42
or 43, Article I of the Oregon Constitution, in any other
proceeding may be enforced by writ of mandamus under ORS 34.105
to 34.240.
(2) Nothing in sections 1 to 19 of this 2009 Act:
(a) Affects the authority granted by law to the prosecuting
attorney to assert the public's interest, including but not
limited to:
(A) Asserting rights granted to victims by law; and
(B) Investigating and presenting to the court evidence relating
to restitution.
(b) Authorizes a court to order the dismissal of a criminal
proceeding or to grant a motion for judgment of acquittal, in
arrest of judgment or for a new trial.
(c) Reduces a defendant's rights under the United States
Constitution or authorizes the suspension of a criminal
proceeding if the suspension would violate a right of a defendant
guaranteed by the Oregon Constitution or the United States
Constitution. + }
SECTION 20. { + (1) There is created the Task Force on
Victims' Rights Enforcement consisting of the Attorney General
and at least nine members appointed as follows:
(a) The Attorney General shall appoint:
(A) Two members employed by or associated with a group
advocating for the rights of victims of crime;
(B) A member who represents the Department of Justice Crime
Victims' Services Division;
(C) A lawyer routinely engaged in the representation of persons
charged with a crime, after consulting with professional
organizations serving such lawyers;
(D) A lawyer routinely engaged in prosecuting persons charged
with person felony crimes, after consulting with professional
organizations serving such lawyers;
(E) A lawyer routinely engaged in prosecuting persons charged
with a crime, after consulting with professional organizations
serving such lawyers; and
(F) Other persons the Attorney General deems appropriate;
(b) The Chief Justice of the Supreme Court shall appoint:
(A) A person employed by the Judicial Department, other than a
judge; and
(B) A judge; and
(c) The executive director of the office of public defense
services established under ORS 151.216 shall appoint a person
employed by the office of public defense services.
(2) The task force shall review the implementation of sections
1 to 19 of this 2009 Act.
(3) The Attorney General shall serve as chair of the task force
and may establish a term of office for the members. The task
force shall meet at times and places specified by the call of the
chairperson or of a majority of the members of the task force.
(4) Members serve at the pleasure of the appointing authority.
If there is a vacancy for any cause, the appointing authority
shall make an appointment to become immediately effective.
(5) The task force shall prepare reports that may include
recommendations for legislation designed to improve, in a
cost-efficient manner, the protection of rights granted to
victims of crime by the Oregon Constitution. The task force shall
submit a report to the President of the Senate and the Speaker of
the House of Representatives no later than:
(a) January 1, 2011; and
(b) January 1, 2013.
(6) Members of the task force are not entitled to compensation
or reimbursement for expenses and serve as volunteers on the task
force.
(7) The Department of Justice shall provide staff support to
the task force.
(8) All agencies of state government, as defined in ORS
174.111, are directed to assist the task force in the performance
of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the
members of the task force consider necessary to perform their
duties. + }
SECTION 21. Section 20 of this 2009 Act is repealed on June 30,
2013.
SECTION 22. { + (1) The Attorney General may adopt rules to
establish a nonjudicial process, independent of the process
established in sections 1 to 19 of this 2009 Act and applicable
to agencies in the executive branch of state government, district
attorneys, juvenile departments and local law enforcement
agencies, to receive claims of violations of rights granted to
victims of crime in the criminal and juvenile justice systems by
law, to determine whether violations have occurred and to make
nonbinding recommendations for achieving full compliance with
victims' rights laws in the future.
(2) The Attorney General, in consultation with agencies in the
executive branch of state government, district attorneys,
juvenile departments and local law enforcement agencies, may
promulgate model rules, procedures or policies, applicable only
to entities outside of the judicial branch of state government,
effectuating rights granted to victims by law. Model rules,
procedures or policies are not enforceable by law, but the
Attorney General may condition the provision of victim assistance
funds or support by the Department of Justice on compliance with
such model rules, procedures or policies. + }
SECTION 23. ORS 40.015 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, as required by ORS 137.090 or proceedings
under ORS 136.765 to 136.785.
(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.
{ + (j) Proceedings under section 11 of this 2009 Act
relating to victims' rights, except for the provisions of ORS
40.105 and 40.115. + }
SECTION 24. ORS 419C.261 is amended to read:
419C.261. (1) The court, on motion of an interested party or on
its own motion, may at any time direct that the petition be
amended. If the amendment results in a substantial departure from
the facts originally alleged, the court shall grant such
continuance as the interests of justice may require. When the
court directs the amendment of a petition alleging that a youth
has committed an act that would constitute a sex crime, as
defined in ORS 181.594, if committed by an adult, the court shall
make written findings stating the reason for directing the
amendment.
(2)(a) The court may set aside or dismiss a petition filed
under ORS 419C.005 in furtherance of justice after considering
the circumstances of the youth and the interests of the state in
the adjudication of the petition.
(b) If the victim requests notice, the district attorney or
juvenile department shall notify the victim of a hearing to amend
the petition in advance of the hearing.
(c) When the court sets aside or dismisses a petition alleging
that a youth has committed an act that would constitute a sex
crime, as defined in ORS 181.594, if committed by an adult, the
court shall make written findings stating the reason for setting
aside or dismissing the petition.
{ - (3) The district attorney or juvenile department must
consult the victim regarding plea negotiations if: - }
{ - (a) The victim has requested to be consulted regarding
plea negotiations; - }
{ - (b) The petition alleges the youth committed an act that
would constitute a violent felony, as defined in ORS 419A.004, if
committed by an adult; and - }
{ - (c) The negotiations could lead to an amendment of the
petition for purposes of obtaining an admission from the
youth. - }
SECTION 25. ORS 147.417 is amended to read:
147.417. (1) As soon as is reasonably practicable in a criminal
action in which there is a victim, a law enforcement agency shall
notify a person who reasonably appears to be a victim of the
offense of the person's rights under section 42, Article I of the
Oregon Constitution. The notice may be { - verbal - }
{ + oral + } or written. If exercise of any of the rights
depends upon the victim making a request, the law enforcement
agency shall include in the notice the time period in which the
victim is required to make the request. A law enforcement agency
satisfies the requirements of this section if the law enforcement
agency:
(a) Provides notice to the victim named in the accusatory
instrument, the victim's guardian or, in a homicide case, the
victim's next of kin; and
(b) Presents, if written notice is given, the notice directly
to the victim or sends the notice to the last address given to
the law enforcement agency by the victim.
(2) Failure by a law enforcement agency to properly notify the
victim as required by this section { + :
(a) + } Is not grounds for setting aside a conviction { - or
withdrawing a plea - } .
{ + (b) Does not affect the validity of a plea, except as
provided by section 42 or 43, Article I of the Oregon
Constitution. + }
{ + (3) + } { - However, - } Nothing in { + subsection
(2) of + } this section justifies { - such - } a failure
{ - . - } { + to properly notify the victim. + }
{ - (3)(a) - } { + (4)(a) + } As used in this section, 'law
enforcement agency' means the police agency that initially
responds in the case, the police agency that investigates the
case or the district attorney who prosecutes the case.
(b) The district attorney shall determine if the notice
required by this section has been given and, if not, shall
provide the notice.
SECTION 26. ORS 419C.273 is amended to read:
419C.273. (1)(a) The victim of any act alleged in a petition
filed under this chapter may be present at and, upon request,
must be informed in advance of critical stages of the proceedings
held in open court when the youth or youth offender will be
present.
(b) The victim must be informed of any constitutional rights of
the victim. Except as provided in ORS 147.417, the district
attorney or juvenile department must ensure that victims are
informed of their constitutional rights. { - If a victim
requests, the district attorney or juvenile department must
support the victim in exercising the victim's constitutional
rights. - }
(2)(a) The victim has the right, upon request, to be notified
in advance of or to be heard at:
(A) A detention or shelter hearing;
(B) A hearing to review the placement of the youth or youth
offender; or
(C) A dispositional hearing.
(b) For a release hearing, the victim has the right:
(A) Upon request, to be notified in advance of the hearing;
(B) To appear personally at the hearing; and
(C) If present, to reasonably express any views relevant to the
issues before the court.
{ - (c) Failure to notify the victim of a hearing under this
subsection or failure of the victim to appear at the hearing does
not affect the validity of the proceeding. - }
(3) If the victim is not present at a critical stage of the
proceeding, the court shall ask the district attorney or juvenile
department whether the victim requested to be notified of
critical stages of the proceedings. If the victim requested to be
notified, the court shall ask the district attorney or juvenile
department whether the victim was notified of the date, time and
place of the hearing. { - The validity of the proceeding is not
affected by the failure to notify the victim of a hearing or
failure of the victim to appear at a hearing that is a critical
stage of the proceeding, including but not limited to hearings
under ORS 135.953, 181.823, 419A.262, 419C.097, 419C.142,
419C.173, 419C.261, 419C.450 or 419C.653. - }
(4) As used in this section:
(a) 'Critical stage of the proceeding' means a hearing that:
(A) Affects the legal interests of the youth or youth offender;
(B) Is held in open court; and
(C) Is conducted in the presence of the youth or youth
offender.
(b) 'Critical stage of the proceeding' includes, but is not
limited to:
(A) Detention and shelter hearings;
(B) Hearings to review placements;
(C) Hearings to set or change conditions of release;
(D) Hearings to transfer proceedings or to transfer parts of
proceedings;
(E) Waiver hearings;
(F) Adjudication and plea hearings;
(G) Dispositional hearings, including but not limited to
restitution hearings;
(H) Review or dispositional review hearings;
(I) Hearings on motions to amend, dismiss or set aside
petitions, orders or judgments;
(J) Probation violation hearings, including probation
revocation hearings, when the basis for the alleged violation
directly implicates a victim's rights { - or well-being - } ;
(K) Hearings for relief from the duty to report under ORS
181.823; and
(L) Expunction hearings.
(5) Nothing in this section creates a cause of action for
compensation or damages. This section may not be used to
invalidate an accusatory instrument { - , ruling of the
court - } { + or adjudication + } or otherwise { - suspend
or - } terminate any proceeding at any point after the case is
commenced or on appeal.
SECTION 27. ORS 135.245 is amended to read:
135.245. (1) Except as provided in ORS 135.240, a person in
custody has the right to immediate security release or to be
taken before a magistrate without undue delay. If the person is
not released under ORS 135.270, or otherwise released before
arraignment, the magistrate shall advise the person of the right
of the person to a security release as provided in ORS 135.265.
(2) If a person in custody does not request a security release
at the time of arraignment, the magistrate shall make a release
decision regarding the person within 48 hours after the
arraignment.
(3) If the magistrate, having given priority to the primary
release criteria, decides to release a defendant or to set
security, the magistrate shall impose the least onerous condition
reasonably likely to ensure the safety of the public and the
victim and the person's later appearance and, if the person is
charged with an offense involving domestic violence, ensure that
the person does not engage in domestic violence while on release.
A person in custody, otherwise having a right to release, shall
be released upon the personal recognizance unless:
(a) Release criteria show to the satisfaction of the magistrate
that such a release is unwarranted; or
(b) Subsection (6) of this section applies to the person.
(4) Upon a finding that release of the person on personal
recognizance is unwarranted, the magistrate shall impose either
conditional release or security release.
(5) { - (a) - } At the release hearing:
{ - (A) - } { + (a) + } The district attorney has a right
to be heard in relation to issues relevant to the release
decision; and
{ - (B) - } { + (b) + } The victim has the right:
{ - (i) - } { + (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 the release hearing;
{ - (ii) - } { + (B) + } To appear personally at the
hearing; and
{ - (iii) - } { + (C) + } If present, to reasonably express
any views relevant to the issues before the magistrate.
{ - (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. - }
(6) If a person refuses to provide a true name under the
circumstances described in ORS 135.060 and 135.065, the
magistrate may not release the person on personal recognizance or
on conditional release. The magistrate may release the person on
security release under ORS 135.265 except that the magistrate
shall require the person to deposit the full security amount set
by the magistrate.
(7) This section shall be liberally construed to carry out the
purpose of relying upon criminal sanctions instead of financial
loss to assure the appearance of the defendant.
SECTION 28. ORS 137.545 is amended to read:
137.545. (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) - } { + (a) + } Upon request made within the time
period prescribed in the notice required by ORS 147.417, to be
notified by the { + supervisory authority as defined in ORS
144.087 or, if the probationer is not supervised by the
supervisory authority, by the + } district attorney of any
hearing before the court that may result in the revocation of the
defendant's probation;
{ - (B) - } { + (b) + } To appear personally at the
hearing; and
{ - (C) - } { + (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. - }
SECTION 29. ORS 144.108 is amended to read:
144.108. (1) If the violation of post-prison supervision is new
criminal activity or if the supervisory authority finds that the
continuum of sanctions is insufficient punishment for a violation
of the conditions of post-prison supervision, the supervisory
authority may:
(a) Impose the most restrictive sanction available, including
incarceration in jail;
(b) Request the State Board of Parole and Post-Prison
Supervision to impose a sanction under subsection (2) of this
section; or
(c) Request the board to impose a sanction under ORS 144.107.
(2) If so requested, the board or its designated representative
shall hold a hearing to determine whether incarceration in a jail
or state correctional facility is appropriate. Except as
otherwise provided by rules of the board and the Department of
Corrections concerning parole and post-prison supervision
violators, the board may impose a sanction up to the maximum
provided by rules of the Oregon Criminal Justice Commission. In
conducting a hearing pursuant to this subsection, the board or
its designated representative shall follow the procedures and the
offender shall have all the rights described in ORS 144.343 and
144.347 relating to revocation of parole.
(3) A person who is ordered to serve a term of incarceration in
a jail or state correctional facility as a sanction for a
post-prison supervision violation is not eligible for:
(a) Earned credit time as described in ORS 169.110 or 421.121;
(b) Transitional leave as defined in ORS 421.168; or
(c) Temporary leave as described in ORS 169.115 or 421.165
(1987 Replacement Part).
(4) A person who is ordered to serve a term of incarceration in
a state correctional facility as a sanction for a post-prison
supervision violation shall receive credit for time served on the
post-prison supervision violation prior to the board's imposition
of the term of incarceration.
(5)(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 board of
any hearing before the board that may result in a revocation
sanction for a post-prison supervision violation;
(B) To appear personally at the hearing; and
(C) If present, to reasonably express any views relevant to the
issues before the board.
(b) { + Except to the extent section 42 or 43, Article I of
the Oregon Constitution, grants rights to, and is enforceable by,
a victim in a proceeding conducted by the board, the + }failure
of the board 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.
SECTION 30. ORS 144.343 is amended to read:
144.343. (1) When the State Board of Parole and Post-Prison
Supervision or its designated representative has been informed
and has reasonable grounds to believe that a person under its
jurisdiction has violated a condition of parole and that
revocation of parole may be warranted, the board or its
designated representative shall conduct a hearing as promptly as
convenient to determine whether there is probable cause to
believe a violation of one or more of the conditions of parole
has occurred and also conduct a parole violation hearing if
necessary. Evidence received and the order of the court at a
preliminary hearing under ORS 135.070 to 135.225 may be used by
the board to determine the existence of probable cause. A waiver
by the defendant of any preliminary hearing shall also constitute
a waiver of probable cause hearing by the board. The location of
the hearing shall be reasonably near the place of the alleged
violation or the place of confinement.
(2) The board may:
(a) Reinstate or continue the alleged violator on parole
subject to the same or modified conditions of parole;
(b) Revoke parole and require that the parole violator serve
the remaining balance of the sentence as provided by law;
(c) Impose sanctions as provided in ORS 144.106; or
(d) Delegate the authority, in whole or in part, granted by
this subsection to its designated representative as provided by
rule.
(3) Within a reasonable time prior to the hearing, the board or
its designated representative shall provide the parolee with
written notice which shall contain the following information:
(a) A concise written statement of the suspected violations and
the evidence which forms the basis of the alleged violations.
(b) The parolee's right to a hearing and the time, place and
purpose of the hearing.
(c) The names of persons who have given adverse information
upon which the alleged violations are based and the right of the
parolee to have such persons present at the hearing for the
purposes of confrontation and cross-examination unless it has
been determined that there is good cause for not allowing
confrontation.
(d) The parolee's right to present letters, documents,
affidavits or persons with relevant information at the hearing
unless it has been determined that informants would be subject to
risk of harm if their identity were disclosed.
(e) The parolee's right to subpoena witnesses under ORS
144.347.
(f) The parolee's right to be represented by counsel and, if
indigent, to have counsel appointed at board expense if the board
or its designated representative determines, after request, that
the request is based on a timely and colorable claim that:
(A) The parolee has not committed the alleged violation of the
conditions upon which the parolee is at liberty;
(B) Even if the violation is a matter of public record or is
uncontested, there are substantial reasons which justify or
mitigate the violation and make revocation inappropriate and that
the reasons are complex or otherwise difficult to develop or
present; or
(C) The parolee, in doubtful cases, appears to be incapable of
speaking effectively on the parolee's own behalf.
(g) That the hearing is being held to determine:
(A) Whether there is probable cause to believe a violation of
one or more of the conditions of parole has occurred; and
(B) If there is probable cause to believe a violation of one or
more of the conditions of parole has occurred:
(i) Whether to reinstate parole;
(ii) Whether to continue the alleged violator on parole subject
to the same or modified conditions of parole; or
(iii) Whether to revoke parole and require that the parole
violator serve a term of imprisonment consistent with ORS
144.346.
(4) At the hearing the parolee shall have the right:
(a) To present evidence on the parolee's behalf, which shall
include the right to present letters, documents, affidavits or
persons with relevant information regarding the alleged
violations;
(b) To confront witnesses against the parolee unless it has
been determined that there is good cause not to allow
confrontation;
(c) To examine information or documents which form the basis of
the alleged violation unless it has been determined that
informants would be subject to risk of harm if their identity is
disclosed; and
(d) To be represented by counsel and, if indigent, to have
counsel provided at board expense if the request and
determination provided in subsection (3)(f) of this section have
been made. If an indigent's request is refused, the grounds for
the refusal shall be succinctly stated in the record.
(5) Within a reasonable time after the preliminary hearing, the
parolee shall be given a written summary of what transpired at
the hearing, including the board's or its designated
representative's decision or recommendation and reasons for the
decision or recommendation and the evidence upon which the
decision or recommendation was based. If an indigent parolee's
request for counsel at board expense has been made in the manner
provided in subsection (3)(f) of this section and refused, the
grounds for the refusal shall be succinctly stated in the
summary.
(6)(a) The parolee may admit or deny the violation without
being physically present at the hearing if the parolee appears
before the board or its designee by means of simultaneous
television transmission allowing the board to observe and
communicate with the parolee and the parolee to observe and
communicate with the board or by telephonic communication
allowing the board to communicate with the parolee and the
parolee to communicate with the board.
(b) Notwithstanding paragraph (a) of this subsection,
appearance by simultaneous television transmission or telephonic
communication shall not be permitted unless the facilities used
enable the parolee to consult privately with counsel during the
proceedings.
(7) If the board or its designated representative has
determined that there is probable cause to believe that a
violation of one or more of the conditions of parole has
occurred, the hearing shall proceed to receive evidence from
which the board may determine whether to reinstate or continue
the alleged parole violator on parole subject to the same or
modified conditions of parole or revoke parole and require that
the parole violator serve a term of imprisonment as provided by
ORS 144.346.
(8) At the conclusion of the hearing if probable cause has been
determined and the hearing has been held by a member of the board
or by a designated representative of the board, the person
conducting the hearing shall transmit the record of the hearing,
together with a proposed order including findings of fact,
recommendation and reasons for the recommendation to the board.
The parolee or the parolee's representative shall have the right
to file exceptions and written arguments with the board. The
right to file exceptions and written arguments may be waived.
After consideration of the record, recommendations, exceptions
and arguments a quorum of the board shall enter a final order
including findings of fact, its decision and reasons for the
decision.
(9)(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 board of
any hearing before the board that may result in the revocation of
the parolee's parole;
(B) To appear personally at the hearing; and
(C) If present, to reasonably express any views relevant to the
issues before the board.
(b) { + Except to the extent section 42 or 43, Article I of
the Oregon Constitution, grants rights to, and is enforceable by,
a victim in a proceeding conducted by the board, the + }failure
of the board 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.
SECTION 31. ORS 419A.004 is amended to read:
419A.004. As used in this chapter and ORS chapters 419B and
419C, unless the context requires otherwise:
(1) 'CASA Volunteer Program' means a program approved or
sanctioned by the juvenile court to recruit, train and supervise
volunteer persons to serve as court appointed special advocates.
(2) 'Child care center' means a residential facility for wards
or youth offenders that is licensed under the provisions of ORS
418.240.
(3) 'Community service' has the meaning given that term in ORS
137.126.
(4) 'Conflict of interest' means a person appointed to a local
citizen review board who has a personal or pecuniary interest in
a case being reviewed by that board.
(5) 'Counselor' means a juvenile department counselor or a
county juvenile probation officer.
(6) 'Court' means the juvenile court.
(7) 'Court appointed special advocate' or 'CASA' means a person
appointed by the court pursuant to a CASA Volunteer Program to
act as special advocate pursuant to ORS 419A.170.
(8) 'Court facility' has the meaning given that term in ORS
166.360.
(9) 'Department' means the Department of Human Services.
(10) 'Detention' or 'detention facility' means a facility
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063 for the detention of children, wards, youths or youth
offenders pursuant to a judicial commitment or order.
(11) 'Director' means the director of a juvenile department
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063.
(12) 'Guardian' means guardian of the person and not guardian
of the estate.
(13) 'Indian child' means any unmarried person less than 18
years of age who is:
(a) A member of an Indian tribe; or
(b) Eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.
(14) 'Juvenile court' means the court having jurisdiction of
juvenile matters in the several counties of this state.
(15) 'Local citizen review board' means the board specified by
ORS 419A.090 and 419A.092.
(16) 'Parent' means the biological or adoptive mother and the
legal father of the child, ward, youth or youth offender. As used
in this subsection, 'legal father' means:
(a) A man who has adopted the child, ward, youth or youth
offender or whose paternity has been established or declared
under ORS 109.070 or 416.400 to 416.465 or by a juvenile court;
and
(b) In cases in which the Indian Child Welfare Act applies, a
man who is a father under applicable tribal law.
(17) 'Permanent foster care' means an out-of-home placement in
which there is a long-term contractual foster care agreement
between the foster parents and the department that is approved by
the juvenile court and in which the foster parents commit to
raise a ward in substitute care or youth offender until the age
of majority.
(18) 'Planned permanent living arrangement' means an
out-of-home placement other than by adoption, placement with a
relative or placement with a legal guardian that is consistent
with the case plan and in the best interests of the ward.
(19) 'Public building' has the meaning given that term in ORS
166.360.
(20) 'Reasonable time' means a period of time that is
reasonable given a child or ward's emotional and developmental
needs and ability to form and maintain lasting attachments.
(21) 'Records' means any information in written form, pictures,
photographs, charts, graphs, recordings or documents pertaining
to a case.
(22) 'Resides' or 'residence,' when used in reference to the
residence of a child, ward, youth or youth offender, means the
place where the child, ward, youth or youth offender is actually
living or the jurisdiction in which wardship or jurisdiction has
been established.
(23) 'Restitution' has the meaning given that term in ORS
137.103.
(24) 'Serious physical injury' means:
(a) A serious physical injury as defined in ORS 161.015; or
(b) A physical injury that:
(A) Has a permanent or protracted significant effect on a
child's daily activities;
(B) Results in substantial and recurring pain; or
(C) In the case of a child under 10 years of age, is a broken
bone.
(25) 'Shelter care' means a home or other facility suitable for
the safekeeping of a child, ward, youth or youth offender who is
taken into temporary custody pending investigation and
disposition.
(26) 'Short-term detention facility' means a facility
established under ORS 419A.050 (3) for holding children, youths
and youth offenders pending further placement.
(27) 'Sibling' means one of two or more children or wards
related:
(a) By blood or adoption through a common legal parent; or
(b) Through the marriage of the children's or wards' legal or
biological parents.
(28) 'Substitute care' means an out-of-home placement directly
supervised by the department or other agency, including placement
in a foster family home, group home or other child caring
institution or facility. 'Substitute care' does not include care
in:
(a) A detention facility, forestry camp or youth correction
facility;
(b) A family home that the court has approved as a ward's
permanent placement, when a private child caring agency has been
appointed guardian of the ward and when the ward's care is
entirely privately financed; or
(c) In-home placement subject to conditions or limitations.
(29) 'Surrogate' means a person appointed by the court to
protect the right of the child, ward, youth or youth offender to
receive procedural safeguards with respect to the provision of
free appropriate public education.
(30) 'Tribal court' means a court with jurisdiction over child
custody proceedings and that is either a Court of Indian
Offenses, a court established and operated under the code of
custom of an Indian tribe or any other administrative body of a
tribe that is vested with authority over child custody
proceedings.
(31) 'Victim' means any person determined by the district
attorney { + , the + } { - or - } juvenile department { + or
the court + } to have suffered direct financial, psychological or
physical harm as a result of { - an - } { + the + } act that
has brought the youth or youth offender before the juvenile
court. When the victim is a minor, ' victim' includes the legal
guardian of the minor. The youth or youth offender may not be
considered the victim. When the victim of the crime cannot be
determined, the people of Oregon, as represented by the district
attorney, are considered the victims.
(32) 'Violent felony' means any offense that, if committed by
an adult, would constitute a felony and:
(a) Involves actual or threatened serious physical injury to a
victim; or
(b) Is a sexual offense. As used in this paragraph, 'sexual
offense' has the meaning given the term 'sex crime' in ORS
181.594.
(33) 'Ward' means a person within the jurisdiction of the
juvenile court under ORS 419B.100.
(34) 'Young person' means a person who has been found
responsible except for insanity under ORS 419C.411 and placed
under the jurisdiction of the Psychiatric Security Review Board.
(35) 'Youth' means a person under 18 years of age who is
alleged to have committed an act that is a violation, or, if done
by an adult would constitute a violation, of a law or ordinance
of the United States or a state, county or city.
(36) 'Youth care center' has the meaning given that term in ORS
420.855.
(37) 'Youth offender' means a person who has been found to be
within the jurisdiction of the juvenile court under ORS 419C.005
for an act committed when the person was under 18 years of age.
SECTION 32. ORS 131.007 is amended to read:
131.007. As used in ORS 40.385, 135.230, { - 135.406, - }
135.970, 147.417, 147.419 and 147.421 and in ORS chapters 136,
137 and 144, except as otherwise specifically provided or unless
the context requires otherwise, 'victim' means the person or
persons who have suffered financial, social, psychological or
physical harm as a result of a crime and includes, in the case of
a homicide or abuse of corpse in any degree, a member of the
immediate family of the decedent and, in the case of a minor
victim, the legal guardian of the minor. In no event shall the
criminal defendant be considered a victim.
SECTION 33. ORS 135.432 is amended to read:
135.432. (1)(a) The trial judge { - shall - } { + may + }
not participate in plea discussions, except { - to - } :
(A) { + To + } inquire of the parties about the status of any
discussions;
(B) { + To + } participate in a tentative plea agreement as
provided in subsections (2) to (4) of this section; { - or - }
(C) { + To + } make the { - inquiry - } { + inquiries + }
required by { - ORS 135.406 - } { + section 5 of this 2009
Act; or
(D) As provided in subsection (5) of this section + }.
(b) Any other judge, at the request of both the prosecution and
the defense, or at the direction of the presiding judge, may
participate in plea discussions. Participation by a judge in the
plea discussion process shall be advisory, and shall in no way
bind the parties. If no plea is entered pursuant to these
discussions, the advice of the participating judge shall not be
reported to the trial judge. If the discussion results in a plea
of guilty or no contest, the parties, if they both agree to do
so, may proceed with the plea before a judge involved in the
discussion. This plea may be entered pursuant to a tentative plea
agreement as provided in subsections (2) to (4) of this section.
(2) If a tentative plea agreement has been reached which
contemplates entry of a plea of guilty or no contest in the
expectation that charge or sentence concessions will be granted,
the trial judge, upon request of the parties, may permit the
disclosure to the trial judge of the tentative agreement and the
reasons therefor in advance of the time for tender of the plea.
The trial judge may then advise the district attorney and defense
counsel whether the trial judge will concur in the proposed
disposition if the information in the presentence report or other
information available at the time for sentencing is consistent
with the representations made to the trial judge.
(3) If the trial judge concurs, but later decides that the
final disposition of the case should not include the sentence
concessions contemplated by the plea agreement, the trial judge
shall so advise the defendant and allow the defendant a
reasonable period of time in which to either affirm or withdraw a
plea of guilty or no contest.
(4) When a plea of guilty or no contest is tendered or received
as a result of a prior plea agreement, the trial judge shall give
the agreement due consideration, but notwithstanding its
existence, the trial judge is not bound by it, and may reach an
independent decision on whether to grant sentence concessions
under the criteria set forth in ORS 135.415.
{ + (5) With the consent of the parties and upon receipt of a
written waiver executed by the defendant, the trial judge may
participate in plea discussions. + }
SECTION 34. ORS 136.295 is amended to read:
136.295. (1) ORS 136.290 does not apply to persons charged with
crimes which are not releasable offenses under ORS 135.240 or to
persons charged with conspiracy to commit murder, or charged with
attempted murder, or to prisoners serving sentences resulting
from prior convictions.
(2) If the defendant is extradited from another jurisdiction,
the 60-day period shall not commence until the defendant enters
the State of Oregon, provided that law enforcement authorities
from the other jurisdiction and this state have conducted the
extradition with all practicable speed. The original 60-day
period shall not be extended more than an additional 60 days,
except where delay has been caused by the defendant in opposing
the extradition.
(3) Any reasonable delay resulting from examination or hearing
regarding the defendant's mental condition or competency to stand
trial, or resulting from other motion or appeal by the defendant,
shall not be included in the 60-day period.
(4)(a) If a victim or witness to the crime in question is
unable to testify within the original 60-day period because of
injuries received at the time the alleged crime was committed or
upon a showing of good cause, the court may order an extension of
custody and postponement of the date of the trial of not more
than 60 additional days. The court, for the same reason, may
order a second extension of custody and postponement of the date
of the trial of not more than 60 days, but in no event shall the
defendant be held in custody before trial for more than a total
of 180 days. A court may grant an extension based upon good cause
as described in paragraph (b)(C), (D) or (E) of this subsection
only if requested by the defendant or defense counsel or by the
court on its own motion.
(b) As used in this subsection, 'good cause' means situations
in which:
(A) The court failed to comply with ORS 136.145 and the victim
is unable to attend the trial;
(B) The victim or an essential witness for either the state or
the defense is unable to testify at the trial because of
circumstances beyond the control of the victim or witness;
(C) The attorney for the defendant cannot reasonably be
expected to try the case within the 60-day period;
(D) The attorney for the defendant has recently been appointed
and cannot be ready to try the case within the 60-day period;
(E) The attorney for the defendant is unable to try the case
within the 60-day period because of conflicting schedules;
(F) Scientific evidence is necessary and because of the
complexity of the procedures it would be unreasonable to have the
procedures completed within the 60-day period;
(G) The defendant has filed notice under ORS 161.309 of the
defendant's intention to rely upon a defense of insanity, partial
responsibility or diminished capacity; { - or - }
(H) The defendant has filed any notice of an affirmative
defense within the last 20 days of the 60-day period { + ; or
(I) A claim under section 6 of this 2009 Act, or a motion under
section 9 of this 2009 Act, relating to victims' rights is
pending, the court has considered the factors described in
section 10 of this 2009 Act and the court has determined that the
trial date should be rescheduled subject to the time limit
provided in section 10 of this 2009 Act + }.
(5) Any period following defendant's arrest in which the
defendant is not actually in custody shall not be included in the
60-day computation.
SECTION 35. { + ORS 135.406 is repealed. + }
SECTION 36. { + (1) Sections 1 to 19 of this 2009 Act, the
amendments to ORS 40.015, 131.007, 135.245, 135.432, 136.295,
137.545, 144.108, 144.343, 147.417, 419A.004, 419C.261 and
419C.273 by sections 23 to 34 of this 2009 Act and the repeal of
ORS 135.406 by section 35 of this 2009 Act apply to criminal
proceedings, as defined in section 1 of this 2009 Act, pending in
any court on, or commenced on or after, the effective date of
this 2009 Act.
(2) Subsection (1) of this section does not affect the
application of section 6 (1) of this 2009 Act to any criminal
proceeding, whether commenced before, on or after the effective
date of this 2009 Act. + }
SECTION 37. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
----------