75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
Senate Bill 242
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 for Oregon State Bar Criminal Law Section)
CHAPTER ................
AN ACT
Relating to previous convictions; creating new provisions; and
amending ORS 132.540.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 132.540 is amended to read:
132.540. (1) The indictment is sufficient if it can be
understood therefrom that:
(a) The defendant is named, or if the name of the defendant
cannot be discovered, that the defendant is described by a
fictitious name, with the statement that the real name of the
defendant is to the jury unknown.
(b) The crime was committed within the jurisdiction of the
court, except where, as provided by law, the act, though done
without the county in which the court is held, is triable
therein.
(c) The crime was committed at some time prior to the finding
of the indictment and within the time limited by law for the
commencement of an action therefor.
(2) { + Except as provided in ORS 136.765 (1) and subsection
(3) of this section, + }the indictment { - shall - } { +
may + } not contain allegations that the defendant has previously
been convicted of the violation of any statute { - which - }
{ + that + } may subject the defendant to enhanced penalties
{ - , except where the conviction constitutes a material element
of the crime charged - } .
{ + (3) The indictment must allege that the defendant has
previously been convicted of an offense when the previous
conviction constitutes a material element of the charged
offense. + }
{ - (3) - } { + (4) + } Words used in a statute to define a
crime need not be strictly pursued in the indictment, but other
words conveying the same meaning may be used.
SECTION 2. { + (1) Except as provided in ORS 163.103 and
813.326, if an accusatory instrument or the written notice
described in ORS 136.765 (2) alleges that the defendant has
previously been convicted of an offense, the state has the burden
of proving the previous conviction unless the defendant
stipulates to that fact. The stipulation must:
(a) Be in writing;
Enrolled Senate Bill 242 (SB 242-A) Page 1
(b) Admit without qualification that the defendant previously
was convicted of the offense and that the conviction is valid;
(c) Include an express waiver of the defendant's right to a
jury trial on the fact of the previous conviction; and
(d) Be filed with the court and served on the district
attorney.
(2) If the defendant submits a stipulation to a previous
conviction that meets the requirements of subsection (1) of this
section, the court shall accept the stipulation. Upon acceptance:
(a) The stipulation constitutes a judicial admission to the
fact of the previous conviction;
(b) If the previous conviction is a material element of the
offense and the jury finds the defendant guilty upon instruction
regarding the balance of the elements of the offense, the court
shall enter a judgment of guilt on the charged offense in
accordance with the stipulation;
(c) Except as provided in subsection (3) of this section, the
court may not submit the allegation of the previous conviction to
the jury; and
(d) Except as provided in subsections (3) and (4) of this
section, neither the court nor the state may reveal to the jury
the defendant's previous conviction.
(3)(a) A stipulation that is accepted by the court must be
presented to the jury if:
(A) The statute that defines the charged offense includes as a
material element that the defendant previously was convicted of
the offense that is the subject of the stipulation and the
charged conduct does not constitute a criminal offense except
with that element; or
(B) The previous conviction is relevant to an enhancement fact
that will be submitted to the jury in accordance with ORS 136.765
to 136.785.
(b) Except as provided in subsection (4) of this section, when
the court presents a stipulation to the jury under this
subsection, the court may not admit any other evidence of the
previous conviction.
(4) The state may offer, and the court may receive and submit
to the jury, evidence of the previous offense or conviction for
any purpose other than establishing the fact of the previous
conviction when the evidence of the previous offense or
conviction is otherwise admissible for that purpose. When
evidence of the previous offense or conviction has been admitted
by the court, the state may comment upon, and the court may give
instructions about, the evidence of the previous offense or
conviction only to the extent that the comments or instructions
relate to the purpose for which the evidence was admitted. + }
SECTION 3. { + (1) Except as provided in ORS 813.328, if an
accusatory instrument or the written notice described in ORS
136.765 (2) alleges that the defendant has previously been
convicted of an offense, the defendant may challenge the validity
of the previous conviction by filing a notice of the defendant's
intent to do so. The notice must:
(a) Identify the previous conviction that the defendant seeks
to challenge;
(b) Specify the factual and legal basis for the challenge; and
(c) Be filed with the court and served on the district attorney
within 35 days of the arraignment, or of the defendant's entry of
the initial plea on an accusatory instrument, whichever is
sooner, unless a different time is permitted by the court for
good cause shown.
Enrolled Senate Bill 242 (SB 242-A) Page 2
(2) The validity of the previous conviction shall be determined
by the court before trial. At the hearing on the defendant's
challenge:
(a) The state has the burden of proving by a preponderance of
the evidence that the defendant previously was convicted of the
offense; and
(b) The defendant has the burden of proving by a preponderance
of the evidence that the previous conviction is not valid.
(3) If the court determines that the defendant was not
previously convicted of the offense that is the subject of the
challenge or that the previous conviction is not valid, the court
shall enter an order prior to trial that so provides and excludes
evidence of the previous conviction. The state may appeal from
the order pursuant to ORS 138.060 (1)(c) or (2)(a).
(4) If the court determines that the defendant previously was
convicted of the offense and that the conviction is valid, or if
the defendant does not file and serve a notice under subsection
(1) of this section, the previous conviction shall be admitted at
trial or, if the previous conviction is relevant to an
enhancement fact described in ORS 136.770 (4) or 136.773 (1),
during the sentencing phase of the proceeding. If the previous
conviction is admitted, the defendant may dispute whether the
defendant previously was convicted of the alleged offense but may
not challenge the validity of the conviction. If the previous
conviction is a material element of the charged offense or is an
enhancement fact, the state must prove the previous conviction
beyond a reasonable doubt unless the defendant stipulates to the
fact of the previous conviction in accordance with section 2 of
this 2009 Act.
(5) For purposes of this section, a previous conviction is not
valid if:
(a) In the proceedings resulting in the conviction, the
defendant was not represented by counsel and was deprived of the
right to counsel in violation of the state or federal
Constitution and the defendant is entitled under either
Constitution to challenge the validity of the prior conviction in
the proceeding before the court.
(b) Before the defendant committed the charged offense, the
previous conviction was vacated by the court of conviction,
reversed or set aside by a court of competent jurisdiction,
expunged or pardoned. + }
SECTION 4. { + Sections 2 and 3 of this 2009 Act and the
amendments to ORS 132.540 by section 1 of this 2009 Act apply to
prosecutions for offenses committed on or after the effective
date of this 2009 Act. + }
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Enrolled Senate Bill 242 (SB 242-A) Page 3
Passed by Senate March 10, 2009
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 13, 2009
...........................................................
Speaker of House
Enrolled Senate Bill 242 (SB 242-A) Page 4
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled Senate Bill 242 (SB 242-A) Page 5