Chapter 137 — Judgment
and Execution; Parole and Probation by the Court
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012 regular
session: 2012 A&R Tables
2011 EDITION
JUDGMENT; EXECUTION; PAROLE; PROBATION
PROCEDURE IN CRIMINAL MATTERS GENERALLY
JUDGMENT
(Generally)
137.010 Duty
of court to ascertain and impose punishment
137.012 Suspension
of imposition or execution of sentence of person convicted of certain sexual
offenses; term of probation
137.013 Appearance
by victim at time of sentencing
137.017 Disposition
of fines, costs and security deposits received by court
137.020 Time
for pronouncing judgment; delay; notice of right to appeal
137.030 Presence
of defendant at pronouncement of judgment
137.040 Bringing
defendant in custody to pronouncement of judgment
137.050 Nonattendance
or nonappearance of released defendant when attendance required by court
137.060 Form
of bench warrant
137.070 Counties
to which bench warrant may issue; service
137.071 Requirements
for judgment documents
137.074 Fingerprints
of convicted felons and certain misdemeanants required
137.076 Blood
or buccal sample and thumbprint of certain convicted defendants required;
application
(Presentence Report)
137.077 Presentence
report; general principles of disclosure
137.079 Presentence
report; other writings considered in imposing sentence; disclosure to parties;
court’s authority to except parts from disclosure
(Aggravation or Mitigation)
137.080 Consideration
of circumstances in aggravation or mitigation of punishment
137.085 Age
and physical disability of victim as factors in sentencing
137.090 Considerations
in determining aggravation or mitigation
137.100 Defendant
as witness in relation to circumstances
(Compensatory Fine)
137.101 Compensatory
fine
(Restitution)
137.103 Definitions
for ORS 137.101 to 137.109
137.106 Restitution
to victims; objections by defendant
137.107 Authority
of court to amend part of judgment relating to restitution
137.109 Effect
of restitution order on other remedies of victim; credit of restitution against
subsequent civil judgment; effect of criminal judgment on subsequent civil
action
(Collection of Monetary Obligations)
137.118 Assignment
of judgments for collection of monetary obligation; costs of collection
(Term and Place of Confinement)
137.120 Term
of sentence; reasons to be stated on record
137.121 Maximum
consecutive sentences
137.123 Provisions
relating to concurrent and consecutive sentences
137.124 Commitment
of defendant to Department of Corrections or county; place of confinement;
transfer of inmates; juveniles
(Community Service)
137.126 Definitions
for ORS 137.126 to 137.131
137.128 Community
service as part of sentence; effect of failure to perform community service
137.129 Length
of community service sentence
137.131 Community
service as condition of probation for offense involving graffiti
(Forfeiture of Weapons)
137.138 Forfeiture
of weapons and revocation of hunting license for certain convictions
(Post-Judgment Procedures)
137.140 Imprisonment
when county jail is not suitable for safe confinement
137.170 Entry
of judgment in criminal action
137.175 Judgment
in criminal action that effects release of defendant; delivery to sheriff
137.183 Interest
on judgments; waiver; payments
137.210 Taxation
of costs against complainant
137.220 Clerk
to prepare trial court file
137.225 Order
setting aside conviction or record of arrest; fees; prerequisites; limitations
(Alcoholic or Drug-Dependent Person)
137.227 Evaluation
after conviction to determine if defendant is alcoholic or drug-dependent
person; agencies to perform evaluation
137.228 Finding
that defendant is alcoholic or drug-dependent person; effect
137.229 Duty
of Department of Corrections
(Effects of Felony Conviction)
137.230 Definitions
for ORS 137.260
137.260 Political
rights restored to persons convicted of felony before August 9, 1961, and
subsequently discharged
137.270 Effect
of felony conviction on property of defendant
137.275 Effect
of felony conviction on civil and political rights of felon
137.281 Withdrawal
of rights during term of incarceration; restoration of rights
137.285 Retained
rights of felon; regulation of exercise
(Minimum Fine)
137.286 Minimum
fines for misdemeanors and felonies
(Payment of Monetary Obligations)
137.288 All
monetary obligations constitute single obligation on part of convicted person
137.289 Priorities
for application of payments on judgments in criminal actions
137.291 Level
I obligations
137.292 Level
II obligations
137.294 Level
III obligations
137.296 Level
IV obligations
137.297 Level
V obligations
137.300 Criminal
Fine Account; rules
137.301 Legislative
findings
EXECUTION OF JUDGMENT
(Imprisonment)
137.310 Authorizing
execution of judgment; detention of defendant
137.315 Electronic
telecommunication of notice of judgment authorized
137.320 Delivery
of defendant when committed to Department of Corrections; credit on sentence
137.330 Where
judgment of imprisonment in county jail is executed
137.333 Exception
to ORS 137.330
137.370 Commencement
and computation of term of imprisonment in state penal or correctional
institution; sentences concurrent unless court orders otherwise
137.372 Credit
for time served as part of probationary sentence
137.375 Release
of prisoners whose terms expire on weekends or legal holidays
137.380 Discipline,
treatment and employment of prisoners
137.390 Commencement,
term and termination of term of imprisonment in county jail; treatment of
prisoners therein
137.440 Return
by officer executing judgment; annexation to trial court file
137.450 Enforcement
of money judgment in criminal action
137.452 Satisfaction
of monetary obligation imposed as part of sentence; release of judgment lien
from real property; authority of Attorney General
(Death Sentence)
137.463 Death
warrant hearing; death warrant
137.464 Administrative
assessment of defendant’s mental capacity
137.466 Judicial
determination of defendant’s mental capacity
137.467 Delivery
of warrant when place of trial changed
137.473 Means
of inflicting death; place and procedures; acquisition of lethal substance
137.476 Assistance
by licensed health care professional or nonlicensed medically trained person
137.478 Return
of death warrant after execution of sentence of death
137.482 Service
of documents on defendant
PROBATION AND PAROLE BY COMMITTING
MAGISTRATE
137.520 Power
of committing magistrate to parole and grant temporary release to persons
confined in county jail; authority of sheriff to release county jail inmates;
disposition of work release earnings
137.523 Custody
of person sentenced to confinement as condition of probation
137.525 Probation
for person convicted of crime described in ORS 163.305 to 163.467; examination;
report; written consent of convicted person
137.530 Investigation
and report of parole and probation officers; statement of victim
137.533 Probation
without entering judgment of guilt; when appropriate; effect of violating
condition of probation
137.540 Conditions
of probation; evaluation and treatment; fees; effect of failure to abide by
conditions; modification
137.545 Period
of probation; discharge from probation; proceedings in case of violation of
conditions
137.547 Consolidation
of probation violation proceedings; rules
137.551 Revocation
of probationary sentences; release dates; rules
137.553 Use
of citations for probation violations authorized
137.557 Citation;
procedure; contents
137.560 Copies
of certain judgments to be sent to Department of Corrections
137.570 Authority
to transfer probationer from one agency to another; procedure
137.580 Effect
of transfer of probationer from one agency to another
137.590 Appointment
of parole and probation officers and assistants; chief parole and probation
officer
137.592 Policy
regarding probation violations
137.593 Duty
of corrections agencies to impose structured, intermediate sanction for
probation violations
137.595 Establishing
system of sanctions; rules
137.596 Probation
violations; custodial sanctions; rules
137.597 Probationer
may consent to imposition of sanctions
137.599 Hearing
prior to, or after, imposition of sanctions
137.610 Performance
by Department of Corrections staff of duties of parole and probation officers
appointed by judge
137.620 Powers
of parole and probation officers; oath of office; bond; audit of accounts
137.630 Duties
of parole and probation officers
DETERMINATE SENTENCES
137.635 Determinate
sentences required for certain felony convictions
137.637 Determining
length of determinate sentences
OREGON CRIMINAL JUSTICE COMMISSION
137.651 Definitions
137.654 Oregon
Criminal Justice Commission; membership; terms; meetings
137.656 Purpose
and duties of commission; rules
137.658 Authority
of chairperson to create committees within commission
137.661 Agency
cooperation with commission
137.662 Oregon
Criminal Justice Commission Account
137.667 Amendments
to sentencing guidelines; submitting to Legislative Assembly; rules
137.669 Guidelines
control sentences; mandatory sentences
137.671 Authority
of court to impose sentence outside guidelines
137.673 Validity
of rules
PRESUMPTIVE SENTENCES, MANDATORY MINIMUM
SENTENCES AND ADULT PROSECUTION OF 15-, 16- AND 17-YEAR-OLD OFFENDERS
137.689 Oregon
Crimefighting Act
137.690 Major
felony sex crime
137.700 Offenses
requiring imposition of mandatory minimum sentences
137.705 Definitions
for ORS 137.705 and 137.707
137.707 Adult
prosecution of 15-, 16- or 17-year-old offenders; mandatory minimum sentences;
lesser included offenses; transfer to juvenile court
137.709 Application
of ORS 137.700 and 137.707
137.712 Exceptions
to ORS 137.700 and 137.707
137.717 Presumptive
sentences for certain property offenders
137.719 Presumptive
sentence for certain sex offenders
SENTENCING REQUIREMENTS CONCERNING
DEFENDANT’S ELIGIBILITY FOR CERTAIN TYPES OF LEAVE, RELEASE OR PROGRAMS
137.750 Sentencing
requirements concerning defendant’s eligibility for certain types of leave,
release or programs
137.751 Determination
of defendant’s eligibility for release on post-prison supervision under ORS
421.508
137.752 Requirements
when defendant committed to custody of county
137.754 Authority
of court to modify judgment to comply with ORS 137.750 and 137.752
SEXUALLY VIOLENT DANGEROUS OFFENDERS
137.765 Sexually
violent dangerous offenders; definitions; mandatory lifetime post-prison
supervision
137.767 Presentence
investigation and examination
137.769 Defendant’s
right to independent examination
137.771 Resentencing
hearing; petition; findings; modification of sentence
MISCELLANEOUS
137.924 Supervisory
authority to provide information to Employment Department
RESTITUTION COLLECTION PILOT PROGRAM
(Temporary provisions relating to
restitution collection pilot program are compiled as notes following ORS
137.924)
JUDGMENT
(Generally)
137.010 Duty of court to ascertain and
impose punishment. (1) The statutes that define
offenses impose a duty upon the court having jurisdiction to pass sentence in
accordance with this section or, for felonies committed on or after November 1,
1989, in accordance with rules of the Oregon Criminal Justice Commission unless
otherwise specifically provided by law.
(2)
If it cannot be determined whether the felony was committed on or after
November 1, 1989, the defendant shall be sentenced as if the felony had been
committed prior to November 1, 1989.
(3)
Except when a person is convicted of a felony committed on or after November 1,
1989, if the court is of the opinion that it is in the best interests of the
public as well as of the defendant, the court may suspend the imposition or
execution of any part of a sentence for any period of not more than five years.
The court may extend the period of suspension beyond five years in accordance
with subsection (4) of this section.
(4)
If the court suspends the imposition or execution of a part of a sentence for
an offense other than a felony committed on or after November 1, 1989, the
court may also impose and execute a sentence of probation on the defendant for
a definite or indefinite period of not more than five years. However, upon a
later finding that a defendant sentenced to probation for a felony has violated
a condition of the probation and in lieu of revocation, the court may order the
period of both the suspended sentence and the sentence of probation extended
until a date not more than six years from the date of original imposition of
sentence. Time during which the probationer has absconded from supervision and
a bench warrant has been issued for the probationer’s arrest shall not be
counted in determining the time elapsed since imposition of the sentence of probation.
(5)
If the court announces that it intends to suspend imposition or execution of
any part of a sentence, the defendant may, at that time, object and request
imposition of the full sentence. In no case, however, does the defendant have a
right to refuse the court’s order, and the court may suspend imposition or
execution of a part of the sentence despite the defendant’s objection or
request. If the court further announces that it intends to sentence the
defendant to a period of probation, the defendant may, at that time, object and
request that a sentence of probation or its conditions not be imposed or that
different conditions be imposed. In no case, however, does the defendant have
the right to refuse a sentence of probation or any of the conditions of the
probation, and the court may sentence the defendant to probation subject to
conditions despite the defendant’s objection or request.
(6)
The power of the judge of any court to suspend execution of any part of a
sentence or to sentence any person convicted of a crime to probation shall
continue until the person is delivered to the custody of the Department of
Corrections.
(7)
When a person is convicted of an offense and the court does not suspend the
imposition or execution of any part of a sentence or when a suspended sentence
or sentence of probation is revoked, the court shall impose the following
sentence:
(a)
A term of imprisonment;
(b)
A fine;
(c)
Both imprisonment and a fine; or
(d)
Discharge of the defendant.
(8)
This section does not deprive the court of any authority conferred by law to
enter a judgment for the forfeiture of property, suspend or cancel a license,
remove a person from office or impose any other civil penalty. An order
exercising that authority may be included as part of the judgment of
conviction.
(9)
When imposing sentence for a felony committed on or after November 1, 1989, the
court shall submit sentencing information to the commission in accordance with
rules of the commission.
(10)
A judgment of conviction that includes a term of imprisonment for a felony
committed on or after November 1, 1989, shall state the length of incarceration
and the length of post-prison supervision. The judgment of conviction shall
also provide that if the defendant violates the conditions of post-prison
supervision, the defendant shall be subject to sanctions including the
possibility of additional imprisonment in accordance with rules of the
commission. [Amended by 1971 c.743 §322; 1981 c.181 §1; 1987 c.320 §27; 1989
c.790 §6; 1989 c.849 §1; 1993 c.14 §1; 2003 c.576 §388; 2005 c.10 §2]
137.012 Suspension of imposition or
execution of sentence of person convicted of certain sexual offenses; term of
probation. If the court suspends the imposition or
execution of a part of a sentence of, or imposes a sentence of probation on,
any person convicted of violating or attempting to violate ORS 163.365,
163.375, 163.395, 163.405, 163.408, 163.411, 163.425 or 163.427, the court
shall sentence the defendant to probation for a period of at least five years
and no more than the maximum statutory indeterminate sentence for the offense. [1991
c.831 §2; 1993 c.14 §2; 1993 c.301 §2; 1999 c.161 §3]
Note:
137.012 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 by legislative action. See Preface to Oregon
Revised Statutes for further explanation.
137.013 Appearance by victim at time of
sentencing. At the time of sentencing, the victim
or the victim’s next of kin has the right to appear personally or by counsel,
and has the right to reasonably express any views concerning the crime, the
person responsible, the impact of the crime on the victim, and the need for
restitution and compensatory fine. [1987 c.2 §10]
137.015 [1971
c.328 §1; 1973 c.346 §1; 1979 c.341 §1; 1983 c.125 §1; 1985 c.277 §1; 1989
c.844 §1; repealed by 1987 c.905 §37]
137.017 Disposition of fines, costs and
security deposits received by court. Except as
otherwise specifically provided by law, all fines, costs, security deposits and
other amounts ordered or required to be paid in criminal actions are monetary
obligations payable to the state and shall be deposited in the Criminal Fine
Account. [1981 s.s. c.3 §102; 1983 c.763 §42; 1987 c.905 §5; 1999 c.1051 §253;
2011 c.597 §122]
137.020 Time for pronouncing judgment;
delay; notice of right to appeal. (1) After a
plea or verdict of guilty, or after a verdict against the defendant on a plea
of former conviction or acquittal, if the judgment is not arrested or a new
trial granted, the court shall appoint a time for pronouncing judgment.
(2)(a)
The time appointed shall be at least two calendar days after the plea or
verdict if the court intends to remain in session so long. If the court does
not intend to remain in session at least two calendar days, the time appointed
may be sooner than two calendar days, but shall be as remote a time as can
reasonably be allowed. However, in the latter case, the judgment shall not be
given less than six hours after the plea or verdict, except with the consent of
the defendant.
(b)
Except for good cause shown or as otherwise provided in this paragraph, a court
shall not delay for more than 31 calendar days after the plea or verdict the
sentencing of a defendant held in custody on account of the pending
proceedings. Except for good cause shown or as otherwise provided in this
paragraph, a court shall not delay for more than 56 calendar days after the
plea or verdict the sentencing of a defendant not held in custody on account of
the pending proceedings. If the defendant is not in custody and the court does
not pronounce judgment within 56 calendar days after the plea or verdict, any
period of probation imposed as a part of a subsequent judgment shall begin to
run from the date of the plea or verdict.
(3)
If the defendant is in custody following the verdict, the court shall pronounce
judgment as soon as practicable, but in any case within seven calendar days
following the verdict if no presentence investigation is ordered, and within
seven calendar days after delivery of the presentence report to the court if a
presentence investigation has been ordered; however, the court may delay
pronouncement of judgment beyond the limits of this subsection for good cause
shown.
(4)
If the final calendar day a defendant must be sentenced is not a judicial day
then sentencing may be delayed until the next judicial day.
(5)(a)
At the time a court pronounces judgment the defendant, if present, shall be
advised of the right to appeal and of the procedure for protecting that right.
If the defendant is not present, the court shall advise the defendant in
writing of the right to appeal and of the procedure for protecting that right.
(b)
If the defendant is sentenced subsequent to a plea of guilty or no contest or
upon probation revocation or sentence suspension, or if the defendant is
resentenced after an order by an appellate court or a post-conviction relief
court, the court shall advise the defendant of the limitations on appealability
imposed by ORS 138.050 (1) and 138.222 (7). If the defendant is not present,
the court shall advise the defendant in writing of the limitations on
appealability imposed by ORS 138.050 (1) and 138.222 (7).
(6)
If the defendant is financially eligible for appointment of counsel at state
expense on appeal under ORS 138.500, trial counsel shall determine whether the
defendant wishes to pursue an appeal. If the defendant wishes to pursue an
appeal, trial counsel shall transmit to the office of public defense services
established under ORS 151.216, on a form prepared by the office, information
necessary to perfect the appeal. [Amended by 1971 c.565 §18a; 1987 c.242 §1;
1991 c.111 §12; 2001 c.644 §4; 2003 c.14 §57]
137.030 Presence of defendant at pronouncement
of judgment. For the purpose of giving judgment, if
the conviction is for:
(1)
A felony, the defendant shall be personally present.
(2)
A misdemeanor, judgment may be given in the absence of the defendant. [Amended
by 1993 c.581 §1; 1997 c.827 §1; 2005 c.566 §9]
137.040 Bringing defendant in custody to
pronouncement of judgment. If the defendant is in custody,
the court shall:
(1)
Direct the officer in whose custody the defendant is to bring the defendant
before the court for judgment and the officer shall do so accordingly; or
(2)
Ensure that arrangements for the defendant to appear for judgment by
simultaneous electronic transmission as described in ORS 131.045 have been
made. [Amended by 2005 c.566 §10]
137.050 Nonattendance or nonappearance of
released defendant when attendance required by court.
(1) If the defendant has been released on a release agreement or security
deposit and does not appear for judgment when personal attendance is required
by the court, the court may order a forfeiture of the security deposit as
provided in ORS 135.280. In addition, if the defendant fails to appear as
required by the release agreement or security deposit, the court may direct the
clerk to issue a bench warrant for the defendant’s arrest.
(2)
At any time after the making of the order for the bench warrant, the clerk, on
the application of the district attorney, shall issue such warrant, as by the
order directed, whether the court is sitting or not. [Amended by 1973 c.836 §257]
137.060 Form of bench warrant.
The bench warrant shall be substantially in the following form:
______________________________________________________________________________
CIRCUIT COURT FOR
THE COUNTY OF ______,
STATE OF
OREGON IN THE NAME OF THE STATE OF OREGON
To any peace officer in the State of
Oregon, greeting:
A
B having been on the ______ day of______, 2___, convicted in this court of the
crime of (designating it generally), you are commanded to arrest the
above-named defendant forthwith and bring the defendant before such court for
judgment or, if the court has adjourned for the term, deliver the defendant
into the custody of the jailor of this county. By order of the court.
Witness
my hand and seal of said circuit court, affixed at ______, in said county,
this ______ day of______, 2___.
[L.
S.]
C D, Clerk of
the Court
______________________________________________________________________________
[Amended by 1957 c.659 §1; 1971 c.423 §1]
137.070 Counties to which bench warrant
may issue; service. The bench warrant mentioned in
ORS 137.050 may issue to one or more counties of the state and may be served in
the same manner as any other warrant of arrest issued by a magistrate. [Amended
by 1973 c.836 §258]
137.071 Requirements for judgment
documents. (1) The judge in a criminal action
shall ensure that the creation and filing of a judgment document complies with
this section. On appeal, the appellate court may give leave as provided in ORS
19.270 for entry of a judgment document that complies with this section but may
not reverse or set aside a judgment, determination or disposition on the sole
ground that the judgment document fails to comply with this section.
(2)
A judgment document in a criminal action must comply with ORS 18.038. In
addition, a judgment document in a criminal action must:
(a)
Indicate whether the defendant was determined to be financially eligible for
purposes of appointed counsel in the action.
(b)
Indicate whether the court appointed counsel for the defendant in the action.
(c)
If there is no attorney for the defendant, indicate whether the defendant
knowingly waived any right to an attorney after having been informed of that
right.
(d)
Include the identity of the recorder or reporter for the proceeding or action
who is to be served under ORS 138.081.
(e)
Include any information specifically required by statute or by court rule.
(f)
Specify clearly the court’s determination for each charge in the information,
indictment or complaint.
(g)
Specify clearly the court’s disposition, including all legal consequences the
court establishes or imposes. If the determination is one of conviction, the
judgment document must include any suspension of sentence, forfeiture,
imprisonment, cancellation of license, removal from office, monetary
obligation, probation, conditions of probation, discharge, restitution,
community service and all other sentences and legal consequences imposed by the
court. Nothing in this paragraph requires the judgment document to specify any
consequences that may result from the determination but are not established or
imposed by the court.
(h)
Include the identities of the attorney for the state and the attorney, if any,
for the defendant.
(3)
A judgment document in a criminal action that includes a money award, as
defined in ORS 18.005, must comply with ORS 18.048.
(4)
The requirements of this section do not apply to a judgment document if the
action was commenced by the issuance of a uniform citation adopted under ORS
1.525 and the court has used the space on the citation for the entry of a
judgment. The exemption provided by this subsection does not apply if any
indictment, information or complaint other than a uniform citation is filed in
the action. [1989 c.472 §2; 1995 c.117 §1; 1997 c.526 §3; 2001 c.962 §88; 2003
c.300 §§1,2; 2003 c.576 §162]
137.072 [1967
c.585 §2; repealed by 1973 c.836 §358]
137.073 [1989
c.472 §3; repealed by 2003 c.576 §580]
137.074 Fingerprints of convicted felons
and certain misdemeanants required. When a person
is convicted of a felony, a Class A misdemeanor or a sex crime, as defined in
ORS 181.594, the court shall ensure that the person’s fingerprints have been
taken. The law enforcement agency attending upon the court is the agency
responsible for obtaining the fingerprints. The agency attending upon the court
may, by agreement, arrange for another law enforcement agency to obtain the
fingerprints on its behalf. [1989 c.790 §19; 1997 c.538 §14]
Note:
137.074 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.075 [1967
c.585 §3; 1971 c.743 §323; repealed by 1973 c.836 §358]
137.076 Blood or buccal sample and
thumbprint of certain convicted defendants required; application.
(1) This section applies to any person convicted of:
(a)
A felony;
(b)
Sexual abuse in the third degree or public indecency;
(c)
Conspiracy or attempt to commit rape in the third degree, sodomy in the third
degree, sexual abuse in the second degree, burglary in the second degree or
promoting prostitution; or
(d)
Murder or aggravated murder.
(2)
When a person is convicted of an offense listed in subsection (1) of this
section:
(a)
The person shall, whether or not ordered to do so by the court under paragraph
(b) of this subsection, provide a blood or buccal sample at the request of the
appropriate agency designated in paragraph (c) of this subsection.
(b)
The court shall include in the judgment of conviction an order stating that a
blood or buccal sample is required to be obtained at the request of the
appropriate agency and, unless the convicted person lacks the ability to pay,
that the person shall reimburse the appropriate agency for the cost of
obtaining and transmitting the blood or buccal sample. If the judgment
sentences the convicted person to probation, the court shall order the
convicted person to submit to the obtaining of a blood or buccal sample as a
condition of the probation.
(c)
The appropriate agency shall cause a blood or buccal sample to be obtained and
transmitted to the Department of State Police. The agency shall cause the
sample to be obtained as soon as practicable after conviction. The agency shall
obtain the convicted person’s thumbprint at the same time the agency obtains
the blood or buccal sample. The agency shall include the thumbprint with the
identifying information that accompanies the sample. Whenever an agency is
notified by the Department of State Police that a sample is not adequate for
analysis, the agency shall obtain and transmit a blood sample. The appropriate
agency shall be:
(A)
The Department of Corrections, whenever the convicted person is committed to
the legal and physical custody of the department.
(B)
In all other cases, the law enforcement agency attending upon the court.
(3)(a)
A blood sample may only be drawn in a medically acceptable manner by a licensed
professional nurse, a licensed practical nurse, a qualified medical technician,
a licensed physician or a person acting under the direction or control of a
licensed physician.
(b)
A buccal sample may be obtained by anyone authorized to do so by the
appropriate agency. The person obtaining the buccal sample shall follow the
collection procedures established by the Department of State Police.
(c)
A person authorized by this subsection to obtain a blood or buccal sample shall
not be held civilly liable for obtaining a sample in accordance with this
subsection and subsection (2) of this section, ORS 161.325 and 419C.473. The
sample shall also be obtained and transmitted in accordance with any procedures
that may be established by the Department of State Police. However, no test
result or opinion based upon a test result shall be rendered inadmissible as
evidence solely because of deviations from procedures adopted by the Department
of State Police that do not affect the reliability of the opinion or test
result.
(4)
No sample is required to be obtained if:
(a)
The Department of State Police notifies the court or the appropriate agency
that it has previously received an adequate blood or buccal sample obtained
from the convicted person in accordance with this section or ORS 161.325 or
419C.473; or
(b)
The court determines that obtaining a sample would create a substantial and
unreasonable risk to the health of the convicted person.
(5)
The provisions of subsections (1) to (4) of this section apply to any person
who, on or after September 29, 1991, is serving a term of incarceration as a
sentence or as a condition of probation imposed for conviction of an offense
listed in subsection (1) of this section, and any such person shall submit to
the obtaining of a blood or buccal sample. Before releasing any such person
from incarceration, the supervisory authority shall cause a blood or buccal
sample and the person’s thumbprint to be obtained and transmitted in accordance
with subsections (1) to (4) of this section. [1991 c.669 §§2,5; 1993 c.14 §3;
1993 c.33 §298; 1993 c.301 §3; 1999 c.97 §1; 2001 c.852 §1]
Note:
137.076 (5) was enacted into law by the Legislative Assembly but was not added
to or made a part of ORS chapter 137 by legislative action. See Preface to
Oregon Revised Statutes for further explanation.
(Presentence Report)
137.077 Presentence report; general
principles of disclosure. The presentence report is not a
public record and shall be available only to:
(1)
The sentencing court for the purpose of assisting the court in determining the
proper sentence to impose and to other judges who participate in a sentencing
council discussion of the defendant. The sentencing judge may disclose
information from the presentence report that is necessary to address the
content of the report, examine the reasoning for a sentencing recommendation or
to explain the reasons for the sentence imposed. Appellate judges may disclose
information from the presentence report that is necessary for legal analysis of
the case or to report the reasoning of the appellate court.
(2)
The Department of Corrections, State Board of Parole and Post-Prison
Supervision and other persons or agencies having a legitimate professional
interest in the information likely to be contained therein. These agencies or
persons may make the presentence report, or any reports based on the contents
of that report, available to the victim.
(3)
Appellate or review courts where relevant to an issue on which an appeal is
taken or post-conviction relief sought.
(4)
The district attorney, the defendant or the counsel of the defendant, as
provided in ORS 137.079. The district attorney and counsel of the defendant may
retain a copy of the presentence report as a part of the permanent records of
the case. The district attorney and counsel of the defendant may disclose the
contents of the presentence report to individuals or agencies when preparing
for the sentencing of the defendant. “Individuals and agencies” include
victims, psychologists, psychiatrists, medical doctors and any other person or
agency who may assist the state or the defendant at the time of sentencing. [1973
c.836 §260; 1987 c.320 §28; 1989 c.408 §1]
137.079 Presentence report; other writings
considered in imposing sentence; disclosure to parties; court’s authority to
except parts from disclosure. (1) A copy of
the presentence report and all other written information concerning the defendant
that the court considers in the imposition of sentence shall be made available
to the district attorney, the defendant or defendant’s counsel at least five
judicial days before the sentencing of the defendant. All other written
information, when received by the court outside the presence of counsel, shall
either be summarized by the court in a memorandum available for inspection or
summarized by the court on the record before sentence is imposed.
(2)
The court may except from disclosure parts of the presentence report or other
written information described in subsection (1) of this section which are not
relevant to a proper sentence, diagnostic opinions which might seriously
disrupt a program of rehabilitation if known by the defendant, or sources of information
which were obtainable with an expectation of confidentiality.
(3)
If parts of the presentence report or other written information described in
subsection (1) of this section are not disclosed under subsection (2) of this
section, the court shall inform the parties that information has not been
disclosed and shall state for the record the reasons for the court’s action.
The action of the court in excepting information shall be reviewable on appeal.
(4)
A defendant who is being sentenced for felonies committed prior to November 1,
1989, may file a written motion to correct the criminal history contained in
the presentence report prior to the date of sentencing. At sentencing, the
court shall consider defendant’s motion to correct the presentence report and
shall correct any factual errors in the criminal history contained in that
report. An order allowing or denying a motion made pursuant to this subsection
shall not be reviewable on appeal. If corrections are made by the court, only
corrected copies of the report shall be provided to individuals or agencies
pursuant to ORS 137.077.
(5)(a)
The provisions of this subsection apply only to a defendant being sentenced for
a felony committed on or after November 1, 1989.
(b)
Except as otherwise provided in paragraph (c) of this subsection, the defendant’s
criminal history as set forth in the presentence report shall satisfy the state’s
burden of proof as to the defendant’s criminal history.
(c)
Prior to the date of sentencing, the defendant shall notify the district
attorney and the court in writing of any error in the criminal history as set
forth in the presentence report. Except to the extent that any disputed portion
is later changed by agreement of the district attorney and defendant with the
approval of the court, the state shall have the burden of proving by a
preponderance of evidence any disputed part of the defendant’s criminal
history. The court shall allow the state reasonable time to produce evidence to
meet its burden.
(d)
The court shall correct any error in the criminal history as reflected in the
presentence report.
(e)
If corrections to the presentence report are made by the court, only corrected
copies of the report shall be provided to individuals or agencies pursuant to
ORS 137.077.
(f)
Except as provided in ORS 138.222, the court’s decision on issues relating to a
defendant’s criminal history shall not be reviewable on appeal. [1973 c.836 §261;
1977 c.372 §11; 1983 c.649 §1; 1989 c.408 §2; 1989 c.790 §8]
(Aggravation or Mitigation)
137.080 Consideration of circumstances in
aggravation or mitigation of punishment. (1) After a
plea or verdict of guilty, or after a verdict against the defendant on a plea
of former conviction or acquittal, in a case where discretion is conferred upon
the court as to the extent of the punishment to be inflicted, the court, upon
the suggestion of either party that there are circumstances which may be
properly considered in aggravation or mitigation of the punishment, may, in its
discretion, hear the same summarily at a specified time and upon such notice to
the adverse party as it may direct.
(2)
Notwithstanding any other provision of law, the consideration of aggravating
and mitigating circumstances as to felonies committed on or after November 1,
1989, including the maximum sentence that may be imposed because of aggravating
circumstances, shall be in accordance with rules of the Oregon Criminal Justice
Commission. [Amended by 1989 c.790 §9]
137.085 Age and physical disability of
victim as factors in sentencing. When a court
sentences a defendant convicted of any crime involving a physical or sexual
assault, the court shall give consideration to a victim’s particular
vulnerability to injury in such case, due to the victim’s youth, advanced age
or physical disability. Such particular vulnerability of the victim is a fact
enhancing the seriousness of any assault, and the court shall consider it as
such in imposing the sentence within the limits otherwise provided by law. [1985
c.767 §1]
Note:
137.085 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.090 Considerations in determining aggravation
or mitigation. (1) In determining aggravation or
mitigation, the court shall consider:
(a)
Any evidence received during the proceeding;
(b)
The presentence report, where one is available; and
(c)
Any other evidence relevant to aggravation or mitigation that the court finds
trustworthy and reliable.
(2)
When a witness is so sick or infirm as to be unable to attend, the deposition
of the witness may be taken out of court at such time and place, and upon such
notice to the adverse party, and before such person authorized to take
depositions, as the court directs. [Amended by 1965 c.400 §1; 1973 c.836 §259;
1989 c.790 §10]
137.100 Defendant as witness in relation
to circumstances. If the defendant consents
thereto, the defendant may be examined as a witness in relation to the
circumstances which are alleged to justify aggravation or mitigation of the
punishment; but if the defendant gives testimony at the request of the
defendant, then the defendant must submit to be examined generally by the adverse
party.
(Compensatory Fine)
137.101 Compensatory fine.
(1) Whenever the court imposes a fine as penalty for the commission of a crime
resulting in injury for which the person injured by the act constituting the
crime has a remedy by civil action, unless the issue of punitive damages has
been previously decided on a civil case arising out of the same act and
transaction, the court may order that the defendant pay any portion of the fine
separately to the clerk of the court as compensatory fines in the case. The
clerk shall pay over to the injured victim or victims, as directed in the court’s
order, moneys paid to the court as compensatory fines under this subsection.
This section shall be liberally construed in favor of victims.
(2)
Compensatory fines may be awarded in addition to restitution awarded under ORS
137.103 to 137.109.
(3)
Nothing in this section limits or impairs the right of a person injured by a
defendant’s criminal acts to sue and recover damages from the defendant in a
civil action. Evidence that the defendant has paid or been ordered to pay
compensatory fines under this section may not be introduced in any civil action
arising out of the facts or events which were the basis for the compensatory
fine. However, the court in such civil action shall credit any compensatory
fine paid by the defendant to a victim against any judgment for punitive
damages in favor of the victim in the civil action. [1981 c.637 §2; 1987 c.2 §11]
(Restitution)
137.103 Definitions for ORS 137.101 to
137.109. As used in ORS 137.101 to 137.109,
161.675 and 161.685:
(1)
“Criminal activities” means any offense with respect to which the defendant is
convicted or any other criminal conduct admitted by the defendant.
(2)
“Economic damages”:
(a)
Has the meaning given that term in ORS 31.710, except that “economic damages”
does not include future impairment of earning capacity; and
(b)
In cases involving criminal activities described in ORS 163.263, 163.264 or
163.266, includes the greater of:
(A)
The value to the defendant of the victim’s services as defined in ORS 163.261;
or
(B)
The value of the victim’s services, as defined in ORS 163.261, computed using
the minimum wage established under ORS 653.025 and the overtime provisions of
the federal Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).
(3)
“Restitution” means full, partial or nominal payment of economic damages to a
victim. Restitution is independent of and may be awarded in addition to a
compensatory fine awarded under ORS 137.101.
(4)
“Victim” means:
(a)
The person against whom the defendant committed the criminal offense, if the
court determines that the person has suffered economic damages as a result of
the offense.
(b)
Any person not described in paragraph (a) of this subsection whom the court
determines has suffered economic damages as a result of the defendant’s
criminal activities.
(c)
The Criminal Injuries Compensation Account, if it has expended moneys on behalf
of a victim described in paragraph (a) of this subsection.
(d)
An insurance carrier, if it has expended moneys on behalf of a victim described
in paragraph (a) of this subsection.
(5)
“Victim” does not include any coparticipant in the defendant’s criminal
activities. [1977 c.371 §1; 1981 c.637 §1; 1983 c.488 §1; 1983 c.740 §16; 1987
c.905 §16; 2005 c.564 §1; 2005 c.642 §4; 2007 c.811 §5]
137.106 Restitution to victims; objections
by defendant. (1) When a person is convicted of a
crime, or a violation as described in ORS 153.008, that has resulted in
economic damages, the district attorney shall investigate and present to the
court, prior to the time of sentencing, evidence of the nature and amount of
the damages. If the court finds from the evidence presented that a victim
suffered economic damages, in addition to any other sanction it may impose, the
court shall include one of the following in the judgment:
(a)
A requirement that the defendant pay the victim restitution in a specific
amount that equals the full amount of the victim’s economic damages as
determined by the court.
(b)
A requirement that the defendant pay the victim restitution, and that the
specific amount of restitution will be established by a supplemental judgment
based upon a determination made by the court within 90 days of entry of the
judgment. In the supplemental judgment, the court shall establish a specific
amount of restitution that equals the full amount of the victim’s economic
damages as determined by the court. The court may extend the time within which
the determination and supplemental judgment may be completed for good cause.
The lien, priority of the lien and ability to enforce the specific amount of
restitution established under this paragraph by a supplemental judgment relates
back to the date of the original judgment that is supplemented.
(c)(A)
A requirement that the defendant pay the victim restitution in a specific
amount that is less than the full amount of the victim’s economic damages, with
the consent of the victim.
(B)
If the defendant is convicted of a person felony, as that term is defined in
the rules of the Oregon Criminal Justice Commission, a requirement that the
defendant pay the victim restitution in a specific amount that is less than the
full amount of the victim’s economic damages, only with the written consent of
the victim.
(2)
After the district attorney makes a presentation described in subsection (1) of
this section, if the court is unable to find from the evidence presented that a
victim suffered economic damages, the court shall make a finding on the record
to that effect.
(3)
No finding made by the court or failure of the court to make a finding under
this section limits or impairs the rights of a person injured to sue and
recover damages in a civil action as provided in ORS 137.109.
(4)(a)
If a judgment or supplemental judgment described in subsection (1) of this
section includes restitution, a court may delay the enforcement of the monetary
sanctions, including restitution, only if the defendant alleges and establishes
to the satisfaction of the court the defendant’s inability to pay the judgment
in full at the time the judgment is entered. If the court finds that the
defendant is unable to pay, the court may establish or allow an appropriate
supervising authority to establish a payment schedule, taking into consideration
the financial resources of the defendant and the burden that payment of
restitution will impose, with due regard to the other obligations of the
defendant. The supervising authority shall be authorized to modify any payment
schedule established under this section.
(b)
As used in this subsection, “supervising authority” means any state or local
agency that is authorized to supervise the defendant.
(5)
If the defendant objects to the imposition, amount or distribution of the
restitution, the court shall allow the defendant to be heard on such issue at
the time of sentencing or at the time the court determines the amount of
restitution. [1977 c.371 §2; 1983 c.724 §1; 1993 c.533 §1; 1997 c.313 §23; 1999
c.1051 §124; 2003 c.670 §1; 2005 c.564 §2; 2007 c.425 §1; 2007 c.482 §1]
137.107 Authority of court to amend part
of judgment relating to restitution. At any time
after entry of a judgment upon conviction of a crime, the court may amend that
part of the judgment relating to restitution if, in the original judgment, the
court included language imposing, recommending or requiring restitution but
failed to conform the judgment to the requirements of ORS 18.048 or any other
law governing the form of judgments in effect before January 1, 2004. [1997
c.526 §2; 2003 c.576 §163]
Note:
137.107 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.109 Effect of restitution order on
other remedies of victim; credit of restitution against subsequent civil
judgment; effect of criminal judgment on subsequent civil action.
(1) Nothing in ORS 137.103 to 137.109, 137.540, 144.102, 144.275, 161.675 and
161.685 limits or impairs the right of a person injured by a defendant’s
commission of a crime, or by a defendant’s commission of a violation described
in ORS 153.008, to sue and recover damages from the defendant in a civil
action. Evidence that the defendant has paid or been ordered to pay restitution
pursuant to ORS 137.103 to 137.109, 137.540, 144.102, 144.275, 161.675 and
161.685 may not be introduced in any civil action arising out of the facts or
events that were the basis for the restitution. However, the court shall credit
any restitution paid by the defendant to a victim against any judgment in favor
of the victim in such civil action.
(2)
If conviction in a criminal trial necessarily decides the issue of a defendant’s
liability for economic damages of a victim, that issue is conclusively
determined as to the defendant if it is involved in a subsequent civil action. [1977
c.371 §7; 1993 c.533 §2; 1997 c.526 §4; 1999 c.1051 §125; 2005 c.564 §3]
137.110
[Repealed by 1973 c.836 §358]
137.111 [1955
c.636 §3; 1961 c.424 §1; repealed by 1971 c.743 §432]
137.112 [1953
c.641 §2; 1955 c.252 §1; 1955 c.636 §1; 1961 c.424 §2; repealed by 1971 c.743 §432]
137.113 [1953
c.641 §3; 1955 c.252 §2; 1961 c.424 §3; repealed by 1971 c.743 §432]
137.114 [1953
c.641 §4; repealed by 1971 c.743 §432]
137.115 [1953
c.641 §5; repealed by 1971 c.743 §432]
137.116 [1953
c.641 §6; 1955 c.252 §3; 1955 c.636 §2; repealed by 1961 c.424 §9]
137.117 [1955
c.636 §10; 1961 c.266 §1; 1961 c.424 §4; repealed by 1971 c.743 §432]
(Collection of Monetary Obligations)
137.118 Assignment of judgments for
collection of monetary obligation; costs of collection.
(1) Judgments in criminal actions that impose monetary obligations, including
judgments requiring the payment of fines, costs, assessments, compensatory
fines, attorney fees, forfeitures or restitution, may be assigned by the state,
by a municipal court or by a justice court for collection.
(2)(a)
The state may assign a judgment to the Department of Revenue or a private
collection agency.
(b)
A justice court may assign a judgment to a private collection agency or, in a
criminal action, to the Department of Revenue for the purposes described in ORS
156.315.
(c)
A municipal court may assign a judgment to:
(A)
A private collection agency; or
(B)
The Department of Revenue for the purposes described in subsections (6) to (8)
of this section, if the judgment was entered in a criminal action and part of
the judgment is payable to the State of Oregon.
(d)
Nothing in this subsection limits the right of a municipal court or a justice
court to assign for collection judgments in matters other than criminal
actions.
(3)
A municipal or justice court may add to any judgment in a criminal action that
includes a monetary obligation a fee for the cost of collection if the court
gives the defendant a period of time to pay the obligation after the date of
imposition of the sentence or after the date of the hearing or proceeding that
results in the imposition of the financial obligation. The fee may not exceed
25 percent of the monetary obligation imposed by the court without the addition
of the cost of collection and may not be more than $250. The fee shall be
waived or suspended by the court if the defendant pays the monetary obligation
in the manner required by the court.
(4)
A state court shall add to any judgment in a criminal action that includes a
monetary obligation the fees required by ORS 1.202.
(5)
As used in subsections (1) to (5) of this section, “criminal action” has the
meaning given that term in ORS 131.005.
(6)
If part of a judgment in a criminal action, as described in subsections (1) to
(5) of this section, is payable to the State of Oregon, a municipal court may
assign the judgment to the Collections Unit in the Department of Revenue for
the following purposes:
(a)
To determine whether refunds or other sums are owed to the debtor by the
department; and
(b)
To deduct the amount of debt from any refunds or other sums owed to the debtor
by the department.
(7)
If the Collections Unit determines that refunds or other sums are owed to the
debtor, the department shall deduct the amount of the debt from any refunds or
other sums owed to the debtor by the department. After also deducting costs of
its actions under subsections (6) to (8) of this section, the department shall
remit the amount deducted from refunds or other sums owed to the debtor to the
municipal court that assigned the judgment.
(8)
A debtor whose account is assigned to the Department of Revenue for setoff
under subsections (6) to (8) of this section is entitled to the notice required
by ORS 293.250 (3)(d) and to the opportunity for payment in ORS 293.250 (3)(c).
[1993 c.531 §1; 1995 c.512 §2; 1997 c.801 §99; 1999 c.64 §1; 2001 c.823 §19;
2003 c.375 §1; subsections (6) to (8) of 2005 Edition enacted as 2005 c.501 §1;
2005 c.501 §2]
Note:
137.118 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.119 [1963
c.320 §1; 1969 c.502 §3; 1969 c.597 §124; repealed by 1971 c.743 §432]
(Term and Place of Confinement)
137.120 Term of sentence; reasons to be
stated on record. (1) Whenever any person is
convicted of a felony committed prior to November 1, 1989, the court shall,
unless it imposes other than a sentence to serve a term of imprisonment in the
custody of the Department of Corrections, sentence such person to imprisonment
for an indeterminate period of time, but stating and fixing in the judgment and
sentence a maximum term for the crime, which shall not exceed the maximum term
of imprisonment provided by law therefor; and judgment shall be given
accordingly. Such a sentence shall be known as an indeterminate sentence. The
court shall state on the record the reasons for the sentence imposed.
(2)
Whenever any person is convicted of a felony committed on or after November 1,
1989, the court shall impose sentence in accordance with rules of the Oregon
Criminal Justice Commission.
(3)
This section does not affect the indictment, prosecution, trial, verdict,
judgment or punishment of any felony committed before June 14, 1939, and all
laws now and before that date in effect relating to such a felony are continued
in full force and effect as to such a felony. [Amended by 1967 c.372 §2; 1971
c.743 §324; 1977 c.372 §12; 1987 c.320 §29; 1989 c.790 §11]
137.121 Maximum consecutive sentences.
Notwithstanding any other provision of law, but subject to ORS 161.605, the maximum
consecutive sentences which may be imposed for felonies committed on or after
November 1, 1989, whether as terms of imprisonment, probation or both, shall be
as provided by rules of the Oregon Criminal Justice Commission. [1989 c.790 §14]
Note: 137.121
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 137 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
137.122 [1985
c.722 §2; repealed by 1991 c.67 §28]
137.123 Provisions relating to concurrent and
consecutive sentences. (1) A sentence imposed by the
court may be made concurrent or consecutive to any other sentence which has
been previously imposed or is simultaneously imposed upon the same defendant.
The court may provide for consecutive sentences only in accordance with the
provisions of this section. A sentence shall be deemed to be a concurrent term
unless the judgment expressly provides for consecutive sentences.
(2)
If a defendant is simultaneously sentenced for criminal offenses that do not
arise from the same continuous and uninterrupted course of conduct, or if the
defendant previously was sentenced by any other court within the United States
to a sentence which the defendant has not yet completed, the court may impose a
sentence concurrent with or consecutive to the other sentence or sentences.
(3)
When a defendant is sentenced for a crime committed while the defendant was
incarcerated after sentencing for the commission of a previous crime, the court
shall provide that the sentence for the new crime be consecutive to the
sentence for the previous crime.
(4)
When a defendant has been found guilty of more than one criminal offense
arising out of a continuous and uninterrupted course of conduct, the sentences
imposed for each resulting conviction shall be concurrent unless the court
complies with the procedures set forth in subsection (5) of this section.
(5)
The court has discretion to impose consecutive terms of imprisonment for
separate convictions arising out of a continuous and uninterrupted course of
conduct only if the court finds:
(a)
That the criminal offense for which a consecutive sentence is contemplated was
not merely an incidental violation of a separate statutory provision in the
course of the commission of a more serious crime but rather was an indication
of defendant’s willingness to commit more than one criminal offense; or
(b)
The criminal offense for which a consecutive sentence is contemplated caused or
created a risk of causing greater or qualitatively different loss, injury or
harm to the victim or caused or created a risk of causing loss, injury or harm
to a different victim than was caused or threatened by the other offense or
offenses committed during a continuous and uninterrupted course of conduct. [1987
c.2 §12; 1991 c.67 §29; 1991 c.111 §14; 1995 c.657 §2; 2003 c.14 §58]
137.124 Commitment of defendant to
Department of Corrections or county; place of confinement; transfer of inmates;
juveniles. (1) If the court imposes a sentence
upon conviction of a felony that includes a term of incarceration that exceeds
12 months:
(a)
The court shall not designate the correctional facility in which the defendant
is to be confined but shall commit the defendant to the legal and physical
custody of the Department of Corrections; and
(b)
If the judgment provides that the term of incarceration be served consecutively
to a term of incarceration of 12 months or less that was imposed in a previous
proceeding by a court of this state upon conviction of a felony, the defendant
shall serve any remaining part of the previously imposed term of incarceration
in the legal and physical custody of the Department of Corrections.
(2)(a)
If the court imposes a sentence upon conviction of a felony that includes a
term of incarceration that is 12 months or less, the court shall commit the
defendant to the legal and physical custody of the supervisory authority of the
county in which the crime of conviction occurred.
(b)
Notwithstanding paragraph (a) of this subsection, when the court imposes a
sentence upon conviction of a felony that includes a term of incarceration that
is 12 months or less, the court shall commit the defendant to the legal and
physical custody of the Department of Corrections if the court orders that the
term of incarceration be served consecutively to a term of incarceration that
exceeds 12 months that was imposed in a previous proceeding or in the same
proceeding by a court of this state upon conviction of a felony.
(3)
After assuming custody of the convicted person the Department of Corrections
may transfer inmates from one correctional facility to another such facility
for the purposes of diagnosis and study, rehabilitation and treatment, as best
seems to fit the needs of the inmate and for the protection and welfare of the
community and the inmate.
(4)
If the court imposes a sentence of imprisonment upon conviction of a
misdemeanor, it shall commit the defendant to the custody of the supervisory
authority of the county in which the crime of conviction occurred.
(5)(a)
When a person under 18 years of age at the time of committing the offense and
under 20 years of age at the time of sentencing is committed to the Department
of Corrections under ORS 137.707, the Department of Corrections shall transfer
the physical custody of the person to the Oregon Youth Authority as provided in
ORS 420.011 if:
(A)
The person will complete the sentence imposed before the person attains 25
years of age; or
(B)
The Department of Corrections and the Oregon Youth Authority determine that,
because of the person’s age, immaturity, mental or emotional condition or risk
of physical harm to the person, the person should not be incarcerated initially
in a Department of Corrections institution.
(b)
A person placed in the custody of the Oregon Youth Authority under this
subsection shall be returned to the physical custody of the Department of
Corrections whenever the Director of the Oregon Youth Authority, after
consultation with the Department of Corrections, determines that the conditions
or circumstances that warranted the transfer of custody under this subsection
are no longer present.
(6)(a)
When a person under 18 years of age at the time of committing the offense and
under 20 years of age at the time of sentencing is committed to the legal and
physical custody of the Department of Corrections or the supervisory authority
of a county following waiver under ORS 419C.349, 419C.352, 419C.364 or 419C.370
or sentencing under ORS 137.707 (5)(b)(A) or (7)(b) or 137.712, the Department
of Corrections or the supervisory authority of a county shall transfer the
person to the physical custody of the Oregon Youth Authority for placement as
provided in ORS 420.011 (3). The terms and conditions of the person’s
incarceration and custody are governed by ORS 420A.200 to 420A.206.
(b)
When a person under 16 years of age is waived under ORS 419C.349, 419C.352,
419C.364 or 419C.370 and subsequently is sentenced to a term of imprisonment in
the county jail, the sheriff shall transfer the person to a youth correction
facility for physical custody as provided in ORS 420.011 (3).
(7)
If the Director of the Oregon Youth Authority concurs in the decision, the
Department of Corrections or the supervisory authority of a county shall
transfer the physical custody of a person committed to the Department of
Corrections or the supervisory authority of the county under subsection (1) or
(2) of this section to the Oregon Youth Authority as provided in ORS 420.011
(2) if:
(a)
The person was at least 18 years of age but under 20 years of age at the time
of committing the felony for which the person is being sentenced to a term of
incarceration;
(b)
The person is under 20 years of age at the time of commitment to the Department
of Corrections or the supervisory authority of the county;
(c)
The person has not been committed previously to the legal and physical custody
of the Department of Corrections or the supervisory authority of a county;
(d)
The person has not been convicted and sentenced to a term of incarceration for
the commission of a felony in any other state;
(e)
The person will complete the term of incarceration imposed before the person
attains 25 years of age;
(f)
The person is likely in the foreseeable future to benefit from the
rehabilitative and treatment programs administered by the Oregon Youth
Authority;
(g)
The person does not pose a substantial danger to Oregon Youth Authority staff
or persons in the custody of the Oregon Youth Authority; and
(h)
At the time of the proposed transfer, no more than 50 persons are in the
physical custody of the Oregon Youth Authority under this subsection.
(8)
Notwithstanding the provisions of subsections (5)(a)(A) or (7) of this section,
the department or the supervisory authority of a county may not transfer the
physical custody of the person under subsection (5)(a)(A) or (7) of this
section if the Director of the Oregon Youth Authority, after consultation with
the Department of Corrections or the supervisory authority of a county,
determines that, because of the person’s age, mental or emotional condition or
risk of physical harm to other persons, the person should not be incarcerated
in a youth correction facility. [1967 c.585 §4; 1971 c.743 §325; 1973 c.836 §262;
1985 c.631 §5; 1987 c.320 §30; 1993 c.33 §299; 1993 c.546 §118; 1995 c.422 §§57,57a;
1995 c.423 §12a; 1999 c.109 §5]
137.125 [1955
c.660 §3; repealed by 1967 c.585 §8]
(Community Service)
137.126 Definitions for ORS 137.126 to
137.131. As used in ORS 137.126 to 137.131:
(1)
“Community service” means uncompensated labor for an agency whose purpose is to
enhance physical or mental stability, environmental quality or the social
welfare.
(2)
“Agency” means a nonprofit organization or public body agreeing to accept
community service from offenders and to report on the progress of ordered
community service to the court or its delegate. [1981 c.551 §2]
137.127 [1955
c.660 §5; repealed by 1967 c.585 §8]
137.128 Community service as part of
sentence; effect of failure to perform community service.
(1) A judge may sentence an offender to community service either as an
alternative to incarceration or fine or probation, or as a condition of
probation. Prior to such order of community service the offender must consent
to donate labor for the welfare of the public. The court or its delegate may
select community service tasks that are within the offender’s capabilities and
are to be performed within a reasonable length of time during hours the
offender is not working or attending school.
(2)
Failure to perform a community service sentence may be grounds for revocation
of probation or contempt of court. [1981 c.551 §§3,5]
137.129 Length of community service
sentence. The length of a community service
sentence shall be within these limits:
(1)
For a violation, not more than 48 hours.
(2)
For a misdemeanor other than driving under the influence of intoxicants in
violation of ORS 813.010, not more than 160 hours.
(3)(a)
For a felony committed prior to November 1, 1993, not more than 500 hours.
(b)
For a felony committed on or after November 1, 1993, as provided in the rules
of the Oregon Criminal Justice Commission.
(4)
For a violation of driving under the influence of intoxicants under ORS
813.010, not less than 80 hours or more than 250 hours. [1981 c.551 §4; 1983
c.721 §1; 1985 c.16 §447; 1993 c.692 §3; 1999 c.1051 §68a]
137.130
[Repealed by 1987 c.550 §5]
137.131 Community service as condition of
probation for offense involving graffiti. (1)
The court shall impose community service as a condition of a probation sentence
when a person is convicted of criminal mischief and the conduct engaged in
consists of defacing property by creating graffiti unless the sentence includes
incarceration in a county jail or a state correctional institution.
(2)
The community service must include removing graffiti, either those that the
defendant created or those created by another, or both. [1995 c.615 §5; 2009
c.15 §1]
(Forfeiture of Weapons)
137.138 Forfeiture of weapons and
revocation of hunting license for certain convictions.
(1) In addition to and not in lieu of any other sentence it may impose, a court
shall require a defendant convicted under ORS 164.365, 166.663, 167.315,
498.056 or 498.146 or other state, county or municipal laws, for an act
involving or connected with injuring, damaging, mistreating or killing a
livestock animal, to forfeit any rights in weapons used in connection with the
act underlying the conviction.
(2)
In addition to and not in lieu of any other sentence it may impose, a court
shall revoke any hunting license possessed by a defendant convicted as
described in subsection (1) of this section.
(3)
The State Fish and Wildlife Director shall refuse to issue a hunting license to
a defendant convicted as described under subsection (1) of this section for a
period of two years following the conviction.
(4)
As used in this section, “livestock animal” has the meaning given in ORS
164.055. [1999 c.766 §1; 2001 c.666 §§27,39; 2005 c.830 §21]
Note:
137.138 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
(Post-Judgment Procedures)
137.140 Imprisonment when county jail is
not suitable for safe confinement. Whenever it
appears to the court that there is no sufficient jail of the proper county, as
provided in ORS 137.330, suitable for the confinement of the defendant, the
court may order the confinement of the defendant in the jail of an adjoining
county or, if there is no sufficient and suitable jail in the adjoining county,
then in the jail of any county in the state. [Amended by 1973 c.836 §263; 1987
c.550 §3]
137.150
[Amended by 1959 c.530 §1; 1969 c.511 §2; repealed by 1971 c.743 §432]
137.160
[Repealed by 1961 c.520 §1]
137.170 Entry of judgment in criminal
action. When judgment in a criminal action is
given, the clerk shall enter the same in the register. If the judgment is upon
a determination of conviction of an offense, the clerk shall state briefly in
the register the offense for which the defendant was convicted. [Amended by
1959 c.638 §19; 1973 c.836 §264; 1985 c.540 §36; 1997 c.801 §65b]
137.175 Judgment in criminal action that effects
release of defendant; delivery to sheriff.
Whenever a judgment in a criminal action will effect the immediate release of a
defendant by discharge, probation, sentence to time served, or otherwise, the
court shall cause the prompt delivery of a copy of the judgment to the sheriff
no later than three calendar days after the judgment is entered. [1987 c.251 §3;
1991 c.111 §15; 1997 c.801 §65c]
137.180
[Amended by 1987 c.709 §2; 1989 c.472 §5; 1995 c.658 §77; 1997 c.801 §62; 1999
c.1051 §126; repealed by 2003 c.576 §580]
137.183 Interest on judgments; waiver;
payments. (1)(a) Criminal judgments bear interest
at the rate provided by ORS 82.010. Except as provided in paragraph (b) of this
subsection, criminal judgments bear interest for a period of 20 years after the
judgment is entered. Except as provided in paragraph (b) of this subsection,
criminal judgments begin to accrue interest on the date the judgment is entered
and do not bear interest after the expiration of the 20-year period.
(b)
When a person is sentenced to a term of imprisonment, interest on a judgment in
a criminal action does not begin to accrue until the first day of the second
full calendar month after the person’s initial release from custody following
the sentencing in which the monetary obligation was imposed. If the judgment
includes a money award for restitution, the judgment accrues interest for a
period of 20 years after the first day of the second full calendar month after
the person’s initial release from custody following the sentencing in which the
monetary obligation was imposed.
(2)
The State Court Administrator may waive interest, or cause waiver of interest,
on any criminal judgment or category of criminal judgments for the purpose of
administering the collection of judgments of the Supreme Court, the Court of
Appeals, the Oregon Tax Court and circuit courts. A judge of the Supreme Court,
the Court of Appeals, the Oregon Tax Court or a circuit court may waive
interest in any criminal action or proceeding for good cause shown.
(3)
A municipal judge may waive interest on any criminal judgment, or category of
criminal judgments, entered in the municipal court in which the judge presides.
A justice of the peace may waive interest on any criminal judgment, or category
of criminal judgments, entered in the justice court in which the justice of the
peace presides.
(4)
A waiver under subsection (2) or (3) of this section may be for all or part of
the interest payable on a criminal judgment and may be for a specified period
of time.
(5)
All payments collected under a criminal judgment must first be applied against
the principal amount of a money award. Payments may be applied against interest
on the money award only after the principal amount of the money award is paid.
This subsection applies only to judgments of the Supreme Court, the Court of
Appeals, the Oregon Tax Court and circuit courts.
(6)
Moneys collected as interest under a criminal judgment may be applied against
costs of collection. Except as provided in subsection (7) of this section:
(a)
Any amounts of moneys collected as interest on judgments of the Supreme Court,
Court of Appeals, Oregon Tax Court or circuit courts that remain after payment
of collection costs shall be deposited in the Criminal Injuries Compensation
Account to be used for the purposes specified in ORS 147.225.
(b)
Any amounts of moneys collected as interest on judgments of the municipal or
justice courts that remain after payment of collection costs shall be deposited
in the general fund of the city or county in which the court operates and be
available for general governmental purposes.
(7)
After any payment of costs of collection, any interest collected on an award
for restitution on and after January 1, 2012, must be paid to the person in
whose favor the award of restitution was made.
(8)
As used in this section, “criminal judgment” means a judgment entered in a
criminal action as defined in ORS 131.005. [1999 c.1064 §2; 2005 c.618 §7; 2007
c.626 §1]
Note:
137.183 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.190
[Repealed by 1959 c.558 §32 (137.220 enacted in lieu of 137.190)]
137.200
[Repealed by 1971 c.743 §432]
137.205 [1963
c.600 §12; 1967 c.372 §3; repealed by 1971 c.743 §432]
137.210 Taxation of costs against
complainant. (1) If it is found by any justice or
court trying the action or hearing the proceeding that the prosecution is
malicious or without probable cause, that fact shall be entered upon record in
the action or proceeding by the justice or court.
(2)
Upon making the entry prescribed in subsection (1) of this section, the justice
or court shall immediately render judgment against the complainant for the
costs and disbursements of the action or proceeding.
(3)
As used in this section “complainant” means every person who voluntarily
appears before any magistrate or grand jury to prosecute any person in a
criminal action, either for a misdemeanor or felony. [Amended by 1959 c.426 §3]
137.220 Clerk to prepare trial court file.
In every criminal proceeding, the clerk shall attach together and file in the
office of the clerk, in the order of their filing, all the original papers
filed in the court, whether before or after judgment, including but not limited
to the indictment and other pleadings, demurrers, motions, affidavits,
stipulations, orders, the judgment and the notice of appeal and undertaking on appeal,
if any. [1959 c.558 §33 (enacted in lieu of 137.190)]
137.225 Order setting aside conviction or
record of arrest; fees; prerequisites; limitations.
(1)(a) At any time after the lapse of three years from the date of
pronouncement of judgment, any defendant who has fully complied with and
performed the sentence of the court and whose conviction is described in
subsection (5) of this section by motion may apply to the court where the
conviction was entered for entry of an order setting aside the conviction; or
(b)
At any time after the lapse of one year from the date of any arrest, if no
accusatory instrument was filed, or at any time after an acquittal or a
dismissal of the charge, the arrested person may apply to the court that would
have jurisdiction over the crime for which the person was arrested, for entry
of an order setting aside the record of the arrest. For the purpose of
computing the one-year period, time during which the arrested person has
secreted himself or herself within or without this state is not included.
(2)(a)
A copy of the motion and a full set of the defendant’s fingerprints shall be
served upon the office of the prosecuting attorney who prosecuted the crime or
violation, or who had authority to prosecute the charge if there was no
accusatory instrument filed, and opportunity shall be given to contest the
motion. The fingerprint card with the notation “motion for setting aside
conviction,” or “motion for setting aside arrest record” as the case may be,
shall be forwarded to the Department of State Police. Information resulting
from the fingerprint search along with the fingerprint card shall be returned
to the prosecuting attorney.
(b)
When a prosecuting attorney is served with a copy of a motion to set aside a
conviction under this section, the prosecuting attorney shall provide a copy of
the motion and notice of the hearing date to the victim, if any, of the crime
by mailing a copy of the motion and notice to the victim’s last-known address.
(c)
When a person makes a motion under subsection (1)(a) of this section, the
person must pay a fee of $80 to the Department of State Police. The person
shall attach a certified check payable to the Department of State Police in the
amount of $80 to the fingerprint card that is served upon the prosecuting
attorney. The office of the prosecuting attorney shall forward the check with
the fingerprint card to the Department of State Police.
(d)
In addition to the fee established under paragraph (c) of this subsection, when
a person makes a motion under subsection (1)(a) of this section the person must
pay the filing fee established under ORS 21.135.
(3)
Upon hearing the motion, the court may require the filing of such affidavits
and may require the taking of such proofs as the court deems proper. The court
shall allow the victim to make a statement at the hearing. Except as otherwise
provided in subsection (13) of this section, if the court determines that the
circumstances and behavior of the applicant from the date of conviction, or
from the date of arrest as the case may be, to the date of the hearing on the
motion warrant setting aside the conviction, or the arrest record as the case
may be, the court shall enter an appropriate order that shall state the
original arrest charge and the conviction charge, if any and if different from
the original, date of charge, submitting agency and disposition. The order
shall further state that positive identification has been established by the
Department of State Police and further identified as to Department of State
Police number or submitting agency number. Upon the entry of the order, the
applicant for purposes of the law shall be deemed not to have been previously
convicted, or arrested as the case may be, and the court shall issue an order
sealing the record of conviction and other official records in the case,
including the records of arrest whether or not the arrest resulted in a further
criminal proceeding.
(4)
The clerk of the court shall forward a certified copy of the order to such
agencies as directed by the court. A certified copy must be sent to the
Department of Corrections when the person has been in the custody of the
Department of Corrections. Upon entry of the order, the conviction, arrest or
other proceeding shall be deemed not to have occurred, and the applicant may
answer accordingly any questions relating to its occurrence.
(5)
The provisions of subsection (1)(a) of this section apply to a conviction of:
(a)
A Class B felony, except for a violation of ORS 166.429 or any crime classified
as a person felony as that term is defined in the rules of the Oregon Criminal
Justice Commission.
(b)
A Class C felony, except for criminal mistreatment in the first degree under
ORS 163.205 when it would constitute child abuse as defined in ORS 419B.005 or
any sex crime.
(c)
The crime of possession of the narcotic drug marijuana when that crime was
punishable as a felony only.
(d)
A crime punishable as either a felony or a misdemeanor, in the discretion of
the court, except for:
(A)
Any sex crime; or
(B)
The following crimes when they would constitute child abuse as defined in ORS
419B.005:
(i)
Criminal mistreatment in the first degree under ORS 163.205; and
(ii)
Endangering the welfare of a minor under ORS 163.575 (1)(a).
(e)
A misdemeanor, including a violation of a municipal ordinance, for which a jail
sentence may be imposed, except for endangering the welfare of a minor under
ORS 163.575 (1)(a) when it would constitute child abuse as defined in ORS
419B.005 or any sex crime.
(f)
A violation, whether under state law or local ordinance.
(g)
An offense committed before January 1, 1972, that if committed after that date
would be:
(A)
A Class C felony, except for any sex crime or for the following crimes when
they would constitute child abuse as defined in ORS 419B.005:
(i)
Criminal mistreatment in the first degree under ORS 163.205; and
(ii)
Endangering the welfare of a minor under ORS 163.575 (1)(a).
(B)
A crime punishable as either a felony or a misdemeanor, in the discretion of
the court, except for any sex crime or for the following crimes when they would
constitute child abuse as defined in ORS 419B.005:
(i)
Criminal mistreatment in the first degree under ORS 163.205; and
(ii)
Endangering the welfare of a minor under ORS 163.575 (1)(a).
(C)
A misdemeanor, except for endangering the welfare of a minor under ORS 163.575
(1)(a) when it would constitute child abuse as defined in ORS 419B.005 or any
sex crime.
(D)
A violation.
(6)
Notwithstanding subsection (5) of this section, the provisions of subsection
(1) of this section do not apply to:
(a)
A conviction for a state or municipal traffic offense.
(b)
A person convicted, within the 10-year period immediately preceding the filing
of the motion pursuant to subsection (1) of this section, of any other offense,
excluding motor vehicle violations, whether or not the other conviction is for
conduct associated with the same criminal episode that caused the arrest or
conviction that is sought to be set aside. Notwithstanding subsection (1) of this
section, a conviction that has been set aside under this section shall be
considered for the purpose of determining whether this paragraph is applicable.
(c)
A person who at the time the motion authorized by subsection (1) of this
section is pending before the court is under charge of commission of any crime.
(7)
Notwithstanding subsection (5) of this section, the provisions of subsection
(1)(a) of this section do not apply to criminally negligent homicide under ORS
163.145, when that offense was punishable as a Class C felony.
(8)
Notwithstanding subsection (5) of this section, the provisions of subsection
(1)(a) of this section apply to a conviction for a Class B felony described in
subsection (5)(a) of this section only if:
(a)
Twenty years or more have elapsed from the date of the conviction sought to be
set aside or of the release of the person from imprisonment for the conviction
sought to be set aside, whichever is later; and
(b)
The person has not been convicted of or arrested for any other offense,
excluding motor vehicle violations, after the date the person was convicted of
the offense sought to be set aside. Notwithstanding subsection (1) of this
section, a conviction or arrest that has been set aside under this section
shall be considered for the purpose of determining whether this paragraph is
applicable.
(9)
The provisions of subsection (1)(b) of this section do not apply to:
(a)
A person arrested within the three-year period immediately preceding the filing
of the motion for any offense, excluding motor vehicle violations, and
excluding arrests for conduct associated with the same criminal episode that
caused the arrest that is sought to be set aside. An arrest that has been set
aside under this section may not be considered for the purpose of determining
whether this paragraph is applicable.
(b)
An arrest for driving while under the influence of intoxicants if the charge is
dismissed as a result of the person’s successful completion of a diversion
agreement described in ORS 813.200.
(10)
The provisions of subsection (1) of this section apply to convictions and
arrests that occurred before, as well as those that occurred after, September
9, 1971. There is no time limit for making an application.
(11)
For purposes of any civil action in which truth is an element of a claim for
relief or affirmative defense, the provisions of subsection (3) of this section
providing that the conviction, arrest or other proceeding be deemed not to have
occurred do not apply and a party may apply to the court for an order requiring
disclosure of the official records in the case as may be necessary in the
interest of justice.
(12)
Upon motion of any prosecutor or defendant in a case involving records sealed
under this section, supported by affidavit showing good cause, the court with
jurisdiction may order the reopening and disclosure of any records sealed under
this section for the limited purpose of assisting the investigation of the
movant. However, such an order has no other effect on the orders setting aside
the conviction or the arrest record.
(13)
Unless the court makes written findings by clear and convincing evidence that
granting the motion would not be in the best interests of justice, the court
shall grant the motion and enter an order as provided in subsection (3) of this
section if the defendant has been convicted of one of the following crimes and
is otherwise eligible for relief under this section:
(a)
Abandonment of a child, ORS 163.535.
(b)
Attempted assault in the second degree, ORS 163.175.
(c)
Assault in the third degree, ORS 163.165.
(d)
Coercion, ORS 163.275.
(e)
Criminal mistreatment in the first degree, ORS 163.205.
(f)
Attempted escape in the first degree, ORS 162.165.
(g)
Incest, ORS 163.525, if the victim was at least 18 years of age.
(h)
Intimidation in the first degree, ORS 166.165.
(i)
Attempted kidnapping in the second degree, ORS 163.225.
(j)
Attempted robbery in the second degree, ORS 164.405.
(k)
Robbery in the third degree, ORS 164.395.
(L)
Supplying contraband, ORS 162.185.
(m)
Unlawful use of a weapon, ORS 166.220.
(14)
As used in this section, “sex crime” has the meaning given that term in ORS
181.594. [1971 c.434 §2; 1973 c.680 §3; 1973 c.689 §1a; 1973 c.836 §265; 1975
c.548 §10; 1975 c.714 §2; 1977 c.286 §1; 1983 c.556 §1; 1983 c.740 §17; 1987
c.320 §31; 1987 c.408 §1; 1987 c.864 §6; 1989 c.774 §1; 1991 c.830 §6; 1993
c.546 §98; 1993 c.664 §2; 1995 c.429 §9; 1995 c.743 §1; 1999 c.79 §1; 2007 c.71
§35; 2009 c.360 §1; 2009 c.560 §1; 2011 c.196 §1; 2011 c.533 §1; 2011 c.547 §29;
2011 c.595 §87]
(Alcoholic or Drug-Dependent Person)
137.227 Evaluation after conviction to
determine if defendant is alcoholic or drug-dependent person; agencies to
perform evaluation. (1) After a defendant has been
convicted of a crime, the court may cause the defendant to be evaluated to
determine if the defendant is an alcoholic or a drug-dependent person, as those
terms are defined in ORS 430.306. The evaluation shall be conducted by an
agency or organization designated under subsection (2) of this section.
(2)
The court shall designate agencies or organizations to perform the evaluations
required under subsection (1) of this section. The designated agencies or
organizations must meet the standards set by the Oregon Health Authority to
perform the evaluations for drug dependency and must be approved by the
authority. Wherever possible, a court shall designate agencies or organizations
to perform the evaluations that are separate from those that may be designated
to carry out a program of treatment for alcohol or drug dependency. [1991 c.630
§1; 2009 c.595 §94]
Note:
137.227 to 137.229 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 137 by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
137.228 Finding that defendant is
alcoholic or drug-dependent person; effect. (1)
When a defendant is sentenced for a crime, the court may enter a finding that
the defendant is an alcoholic or a drug-dependent person, as those terms are
defined in ORS 430.306. The finding may be based upon any evidence before the
court, including, but not limited to, the facts of the case, stipulations of
the parties and the results of any evaluation conducted under ORS 137.227.
(2)
When the court finds that the defendant is an alcoholic or a drug-dependent
person, the court, when it sentences the defendant to a term of imprisonment,
shall direct the Department of Corrections to place the defendant in an
appropriate alcohol or drug treatment program, to the extent that resources are
available. The alcohol or drug treatment program shall meet the standards
promulgated by the Oregon Health Authority pursuant to ORS 430.357. [1991 c.630
§§2,3; 2005 c.271 §1; 2009 c.595 §95]
Note: See
note under 137.227.
137.229 Duty of Department of Corrections.
The Department of Corrections, to the extent that funds are available, shall
expand existing and establish new treatment programs for alcohol and drug
dependency that meet minimum standards adopted by the Oregon Health Authority
pursuant to ORS 430.357. [1991 c.630 §4; 2011 c.673 §5]
Note: See
note under 137.227.
(Effects of Felony Conviction)
137.230 Definitions for ORS 137.260.
As used in ORS 137.260, “conviction” or “convicted” means an adjudication of
guilt upon a verdict or finding entered in a criminal proceeding in a court of
competent jurisdiction. [1961 c.412 §1; 1987 c.158 §20]
137.240
[Formerly 421.110; 1973 c.56 §1; 1973 c.836 §266; 1974 c.36 §2; repealed by
1975 c.781 §10]
137.250
[Formerly 421.112; 1973 c.836 §267; repealed by 1975 c.781 §10]
137.260 Political rights restored to
persons convicted of felony before August 9, 1961, and subsequently discharged.
Any person convicted of a felony prior to August 9, 1961, and subsequently
discharged from probation, parole or imprisonment prior to or after August 9,
1961, is hereby restored to the political rights of the person. [1961 c.412 §4]
137.270 Effect of felony conviction on
property of defendant. No conviction of any person for
crime works any forfeiture of any property, except in cases where the same is
expressly provided by law; but in all cases of the commission or attempt to
commit a felony, the state has a lien, from the time of such commission or
attempt, upon all the property of the defendant for the purpose of satisfying
any judgment which may be given against the defendant for any fine on account
thereof and for the costs and disbursements in the proceedings against the
defendant for such crime; provided, however, such lien shall not attach to such
property as against a purchaser or incumbrancer in good faith, for value, whose
interest in the property was acquired before the entry of the judgment against
the defendant. [Formerly 137.460; 2003 c.576 §191]
137.275 Effect of felony conviction on
civil and political rights of felon. Except as
otherwise provided by law, a person convicted of a felony does not suffer civil
death or disability, or sustain loss of civil rights or forfeiture of estate or
property, but retains all of the rights of the person, political, civil and
otherwise, including, but not limited to, the right to vote, to hold, receive
and transfer property, to enter into contracts, including contracts of
marriage, and to maintain and defend civil actions, suits or proceedings. [1975
c.781 §1]
137.280 [1975
c.781 §2; repealed by 1983 c.515 §1 (137.281 enacted in lieu of 137.280)]
137.281 Withdrawal of rights during term
of incarceration; restoration of rights. (1) In any
felony case, when the defendant is sentenced to a term of incarceration, the
defendant is deprived of all rights and privileges described in subsection (3)
of this section from the date of sentencing until:
(a)
The defendant is released from incarceration; or
(b)
The defendant’s conviction is set aside.
(2)
Subsection (1) of this section applies to any term of incarceration, whether
the term of incarceration was imposed as a result of conviction or as a
sanction or revocation resulting from the defendant’s violation of the terms
and conditions of probation, parole or post-prison supervision.
(3)
The rights and privileges of which a person may be deprived under this section
are:
(a)
Holding a public office or an office of a political party or becoming or
remaining a candidate for either office;
(b)
Holding a position of private trust;
(c)
Acting as a juror; or
(d)
Exercising the right to vote.
(4)
If the court under subsection (1) of this section temporarily stays execution
of sentence for any purpose other than probation, the defendant nonetheless is
sentenced for purposes of subsection (1) of this section.
(5)
A person convicted of any crime and serving a term of imprisonment in any
federal correctional institution in this state is deprived of the rights to
register to vote, update a registration or vote in any election in this state
from the date of sentencing until:
(a)
The person is discharged or paroled from imprisonment; or
(b)
The person’s conviction is set aside.
(6)
The county clerk or county official in charge of elections in any county may
cancel the registration of any person serving a term of imprisonment in any
federal correctional institution in this state.
(7)
Except as otherwise provided in ORS 10.030, the rights and privileges withdrawn
by this section are restored automatically upon release from incarceration, but
in the case of parole shall be automatically withdrawn upon a subsequent
imprisonment for violation of the terms of the parole. [1983 c.515 §2 (enacted
in lieu of 137.280); 1987 c.320 §32; 1993 c.14 §4; 1997 c.313 §10; 1999 c.499 §1;
2008 c.35 §6]
137.285 Retained rights of felon;
regulation of exercise. ORS 137.275 to 137.285 do not
deprive the Director of the Department of Corrections, or the director’s
authorized agents, of the authority to regulate the manner in which these
retained rights of convicted persons may be exercised as is reasonably
necessary for the control of the conduct and conditions of confinement of
convicted persons in the custody of the Department of Corrections. [1975 c.781 §3;
1979 c.284 §116; 1987 c.320 §33]
(Minimum Fine)
137.286 Minimum fines for misdemeanors and
felonies. (1) Unless a specific minimum fine is
provided by law, the minimum fine for a misdemeanor is $100.
(2)
Unless a specific minimum fine is provided by law, the minimum fine for a
felony is $200.
(3)
A court may waive payment of the minimum fine established by this section, in
whole or in part, if the court finds that requiring payment of the minimum fine
would be inconsistent with justice in the case. In making its determination
under this subsection, the court shall consider:
(a)
The financial resources of the defendant and the burden that payment of the
minimum fine will impose, with due regard to the other obligations of the
defendant; and
(b)
The extent to which that burden can be alleviated by allowing the defendant to
pay the monetary obligations imposed by the court on an installment basis or on
other conditions to be fixed by the court.
(4)
This section does not affect the manner in which a court imposes or reduces
monetary obligations other than fines. [2011 c.597 §10]
(Payment of Monetary Obligations)
137.288 All monetary obligations
constitute single obligation on part of convicted person.
All fines, costs, restitution, compensatory fines and other monetary
obligations imposed upon a convicted person in a circuit, justice or municipal
court constitute a single obligation on the part of the convicted person. The
clerk shall divide the total obligation as provided in ORS 137.289 to 137.297,
based on the different parts of the obligation, and shall credit and distribute
all moneys received in payment of the obligation in the manner provided by ORS
137.289 to 137.297. [Formerly 137.293]
Note:
137.288 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.289 Priorities for application of
payments on judgments in criminal actions. (1)
There are five levels of priority for application of payments on judgments of
conviction in criminal actions, with Level I obligations having the highest
priority and Level V having the lowest priority. All payments on a judgment of
conviction in a criminal action shall be applied first against the unpaid
obligations in the level with highest priority until those obligations have
been paid in full, and shall then be applied against the obligations in the
level with the next highest level of priority, until all obligations under the
judgment have been paid in full.
(2)
Except as provided in ORS 137.292, if there is more than one person or public
body to whom an obligation is payable under a level, the court shall divide
each payment based on each person’s or public body’s proportionate share of the
total amount of obligations in that level. [2011 c.597 §33]
137.290 [1987
c.905 §1; 1991 c.460 §14; 1993 c.33 §300; 1993 c.637 §1; 1993 c.770 §§1,3; 1995
c.555 §1; 1997 c.872 §27; 1999 c.1051 §127; 1999 c.1056 §1d; 1999 c.1095 §6;
2003 c.737 §112; 2003 c.819 §11; 2005 c.843 §21; 2007 c.899 §§1,2; repealed by
2011 c.597 §118]
137.291 Level I obligations.
Compensatory fines under ORS 137.101 are Level I obligations. [2011 c.597 §34]
137.292 Level II obligations.
(1) There are two types of Level II obligations:
(a)
Type 1 obligations include awards of restitution as defined in ORS 137.103,
awards of restitution under ORS 419C.450 and money awards made under ORS
811.706.
(b)
Type 2 obligations include all fines and other monetary obligations payable to
the state for which the law does not expressly provide other disposition,
including fines payable to the state by justice and municipal courts under ORS
153.633, 153.645 and 153.650.
(2)
If a judgment contains both types of Level II obligations, the court shall
apply 50 percent of amounts creditable to Level II obligations to Type 1
obligations and 50 percent of the amounts to Type 2 obligations, until all
obligations in one of the two types have been paid in full. All subsequent
amounts creditable to Level II obligations shall be applied against the other
type of obligations until those obligations have been paid in full.
(3)
If there is more than one person for whose benefit a Type 1 money award has
been made, the clerk shall pay the moneys credited to Type 1 obligations in the
following order of priority:
(a)
If the judgment contains a money award payable to the person or persons against
whom the defendant committed the offense, the clerk shall first pay all moneys
credited to Type 1 obligations to those persons, and shall continue to do so
until all those obligations are paid in full. If there is more than one person
to whom an obligation is payable under this paragraph, the court shall divide
each payment under this paragraph based on each person’s proportionate share of
the total amount of obligations subject to payment under this paragraph.
(b)
If the judgment contains a money award payable to the Criminal Injuries
Compensation Account, the clerk shall thereafter transfer moneys credited to
Type 1 obligations to the account until the award is paid in full.
(c)
If the judgment contains a money award payable to any other victims, as defined
in ORS 137.103, the clerk shall thereafter pay the moneys credited to Type 1
obligations to those victims until those victims are paid in full. [2011 c.597 §35]
137.293 [1987
c.905 §2; 2011 c.597 §123; renumbered 137.288 in 2011]
137.294 Level III obligations.
Level III obligations are fines payable to a county or city. [2011 c.597 §36]
137.295 [1987
c.905 §3; 1991 c.460 §13; 1993 c.33 §301; 1995 c.782 §3; 1997 c.761 §10; 1999
c.1051 §128; 1999 c.1064 §1; 2001 c.823 §§22,23; 2003 c.687 §§2,3; 2005 c.564 §§4,5;
2007 c.626 §2; 2007 c.899 §§3,4; repealed by 2011 c.597 §118]
137.296 Level IV obligations.
Level IV obligations are amounts that the law expressly directs be paid to a
specific account or public body as defined in ORS 174.109. [2011 c.597 §37]
137.297 Level V obligations.
Level V obligations are amounts payable for reward reimbursement under ORS
131.897. [2011 c.597 §38]
Note:
Section 39, chapter 597, Oregon Laws 2011, provides:
Sec. 39.
Sections 33 to 38 of this 2011 Act [137.289 to 137.297] and the repeal of ORS
137.295 by section 118 of this 2011 Act apply to all payments on judgments of
conviction of an offense, without regard to whether the offense was committed
before, on or after January 1, 2012. [2011 c.597 §39]
137.300 Criminal Fine Account; rules.
(1) The Criminal Fine Account is established in the General Fund. Except as
otherwise provided by law, all amounts collected in state courts as monetary
obligations in criminal actions shall be deposited by the courts in the
account. All moneys in the account are continuously appropriated to the Department
of Revenue to be distributed by the Department of Revenue as provided in this
section. The Department of Revenue shall keep a record of moneys transferred
into and out of the account.
(2)
The Legislative Assembly shall first allocate moneys from the Criminal Fine
Account for the following purposes, in the following order of priority:
(a)
Allocations for public safety standards, training and facilities.
(b)
Allocations for criminal injuries compensation and assistance to victims of
crime and children reasonably suspected of being victims of crime.
(c)
Allocations for the forensic services provided by the Oregon State Police,
including, but not limited to, services of the State Medical Examiner.
(d)
Allocations for the maintenance and operation of the Law Enforcement Data
System.
(3)
After making allocations under subsection (2) of this section, the Legislative
Assembly shall allocate moneys from the Criminal Fine Account for the following
purposes:
(a)
Allocations to the Law Enforcement Medical Liability Account established under
ORS 414.815.
(b)
Allocations to the State Court Facilities and Security Account established
under ORS 1.178.
(c)
Allocations to the Department of Corrections for community corrections grants
under ORS 423.520.
(d)
Allocations to the Oregon Health Authority for the purpose of grants under ORS
430.345 for the establishment, operation and maintenance of alcohol and drug
abuse prevention, early intervention and treatment services provided through a
county.
(e)
Allocations to the Oregon State Police for the purpose of the enforcement of
the laws relating to driving under the influence of intoxicants.
(f)
Allocations to the Arrest and Return Account established under ORS 133.865.
(g)
Allocations to the Intoxicated Driver Program Fund established under ORS
813.270.
(4)
It is the intent of the Legislative Assembly that allocations from the Criminal
Fine Account under subsection (3) of this section be consistent with historical
funding of the entities, programs and accounts listed in subsection (3) of this
section from monetary obligations imposed in criminal proceedings.
(5)
Moneys in the Criminal Fine Account may not be allocated for the payment of
debt service obligations.
(6)
The Department of Revenue shall deposit in the General Fund all moneys
remaining in the Criminal Fine Account after the distributions listed in
subsections (2) and (3) of this section have been made.
(7)
The Department of Revenue shall establish by rule a process for distributing
moneys in the Criminal Fine Account. [1987 c.905 §6; 2001 c.829 §§1,1a; 2005
c.700 §2; 2011 c.597 §52]
Note:
Section 53, chapter 597, Oregon Laws 2011, provides:
Sec. 53.
Notwithstanding ORS 137.300, for the period beginning July 1, 2011, and ending
June 30, 2013, the Department of Revenue shall distribute the moneys in the
Criminal Fine and Assessment Account and the Criminal Fine Account as specified
in sections 54 to 59 of this 2011 Act. [2011 c.597 §53]
Note:
137.300 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.301 Legislative findings.
The Legislative Assembly finds that:
(1)
Systems critical components of the Oregon criminal justice system exist that
require the highest priority considerations for funding from the Criminal Fine
Account.
(2)
The systems critical components of the Oregon criminal justice system are
interrelated and essential to the initiation and successful conclusion of
criminal investigations.
(3)
The interests of victims of crime and other Oregonians are advanced by the
ability of the public safety community to respond professionally to reports of
criminal activity and to successfully investigate criminal cases in a manner
that protects the constitutional rights of all Oregonians.
(4)
The effective training of police officers, corrections officers, parole and
probation officers and other first responders increases the likelihood that
crimes will be solved quickly and that the needs of victims of crime will be
met.
(5)
The collection of evidence at crime scenes, the forensic processing of the
evidence by qualified, well-trained technicians and the work of medical
examiners are critical statewide functions that allow all Oregonians an equal
opportunity to justice.
(6)
The collection of criminal information such as that retained in the Law
Enforcement Data System enhances the ability of investigators to identify
criminals and the unnamed victims of violent crimes.
(7)
Timely intervention on behalf of victims of crime through effective assistance
programs makes recovery from victimization possible and is necessary to the
well-being of Oregonians adversely affected by violent crime. [2005 c.700 §1;
2011 c.597 §52b]
Note:
137.301 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.302 [2001
c.829 §2; repealed by 2005 c.700 §3]
137.303 [1987
c.905 §7; 1989 c.904 §49; 1991 c.460 §2; 1993 c.741 §1; 1993 c.770 §§2,4; 1995
c.555 §§2,3; 1997 c.872 §28; 1999 c.1056 §§2,2c; 1999 c.1084 §38; 2001 c.624 §13;
repealed by 2001 c.829 §10]
137.304 [1999
c.1095 §8; 1999 c.1095 §§9,10,11; repealed by 2001 c.829 §10]
137.305 [1987
c.905 §8; 1991 c.460 §15; 1993 c.637 §4; 1993 c.770 §6; 1995 c.440 §2; 1997
c.872 §29; 1999 c.867 §9; repealed by 2001 c.829 §10]
137.306 [1989
c.860 §§1,6; 1993 c.14 §5; repealed by 1993 c.196 §12]
137.307 [1989
c.860 §§2,3,5; 1991 c.203 §1; repealed by 1993 c.196 §12]
137.308 [1989
c.860 §4; 1993 c.196 §4; 1993 c.637 §14; 1999 c.1051 §255; 2005 c.804 §5; 2009
c.856 §§6,33; repealed by 2011 c.597 §118]
137.309 [1991
c.778 §§4,5; 1993 c.14 §6; 1993 c.196 §1; 1993 c.637 §§13,13a; 1999 c.1051 §254;
2003 c.687 §4; 2005 c.804 §6; repealed by 2011 c.597 §118]
EXECUTION OF JUDGMENT
(Imprisonment)
137.310 Authorizing execution of judgment;
detention of defendant. (1) When a judgment has been
pronounced, a certified copy of the entry thereof in the register shall be
forthwith furnished by the clerk to the officer whose duty it is to execute the
judgment; and no other warrant or authority is necessary to justify or require
its execution.
(2)
The defendant may be arrested and detained in any county in the state by any
peace officer and held for the authorities from the county to which the
execution is directed. Time spent by the defendant in such detention shall be
credited towards the term specified in the judgment. [Amended by 1961 c.358 §1;
1967 c.372 §4; 1985 c.540 §37]
137.315 Electronic telecommunication of
notice of judgment authorized. Whenever it
is necessary that a copy of the entry of judgment against a defendant be
delivered to the Department of Corrections or any other correctional authority
of this state, or to the correctional authority of any political subdivision of
this state, the court or the sheriff may transmit notice of the judgment by
electronic telecommunication. The notice of judgment shall serve as authority
for imprisonment under this chapter. The notice need not be a duplicate or
photographic copy of judgment, but if it is not a duplicated or photographic
copy, then it must be followed in due course by a duplicate or photographic
copy with a notation that notice had been sent previously. [1987 c.251 §2]
137.320 Delivery of defendant when
committed to Department of Corrections; credit on sentence.
(1) When a judgment includes commitment to the legal and physical custody of
the Department of Corrections, the sheriff shall deliver the defendant,
together with a copy of the entry of judgment and a statement signed by the
sheriff of the number of days the defendant was imprisoned prior to delivery,
to the superintendent of the Department of Corrections institution to which the
defendant is initially assigned pursuant to ORS 137.124. If at the time of
entry of a judgment, the defendant was serving a term of incarceration at the
direction of the supervisory authority of a county upon conviction of a prior
felony, the sheriff shall also deliver to the Department of Corrections a copy
of the prior entry of judgment committing the defendant to the supervisory
authority of the county of conviction and a statement of the number of days the
defendant has remaining to be served on the term or incarceration imposed in
the prior judgment.
(2)
If the defendant is surrendered to another legal authority prior to delivery to
an institution of the Department of Corrections, the sheriff shall forward to
the Department of Corrections copies of the entry of all pertinent judgments, a
statement of the number of days the defendant was imprisoned prior to
surrender, a statement of the number of days the defendant has remaining to be
served on any term of incarceration the defendant was serving at the direction
of the supervisory authority of a county upon conviction of a prior felony and
an identification of the authority to whom the prisoner was surrendered.
(3)
Upon receipt of the information described in subsection (1) or (2) of this
section, the Department of Corrections shall establish a case file and compute
the defendant’s sentence in accordance with the provisions of ORS 137.370.
(4)
When the judgment is imprisonment in the county jail or a fine and that the
defendant be imprisoned until it is paid, the judgment shall be executed by the
sheriff of the county. The sheriff shall compute the time the defendant was
imprisoned after arrest and prior to the commencement of the term specified in
the judgment. Such time shall be credited towards the term of the sentence. [Amended
by 1955 c.660 §14; 1967 c.232 §1; 1967 c.585 §5; 1971 c.619 §1; 1973 c.631 §1;
1981 c.424 §1; 1987 c.320 §34; 1995 c.423 §29]
137.330 Where judgment of imprisonment in
county jail is executed. (1) Except as provided in ORS
137.333, 137.140 or 423.478, a judgment of imprisonment in the county jail
shall be executed by confinement in the jail of the county where the judgment
is given, except that when the place of trial has been changed, the confinement
shall take place in the jail of the county where the action was commenced.
(2)
The jailor of any county jail to which a prisoner is ordered, sentenced or
delivered pursuant to ORS 137.140 shall receive and keep such prisoner in the
same manner as if the prisoner had been ordered, sentenced or delivered to the
jailor by an officer or court of the jailor’s own county; but the county in
which the prisoner would be imprisoned except for the provisions of ORS 137.140
shall pay all the expenses of keeping and maintaining the prisoner in said
jail. [Amended by 1987 c.550 §4; 1996 c.4 §3]
137.333 Exception to ORS 137.330.
Whenever a judge sentences a person to a term of incarceration in a county
jail, the judgment may be executed by confinement in another county or in a
state correctional facility if the county in which the person would otherwise
be imprisoned:
(1)
Has entered into an intergovernmental agreement as provided in ORS 169.053; or
(2)
Is located within an intergovernmental corrections entity formed under ORS
190.265. [1996 c.4 §2]
Note:
137.333 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.340
[Repealed by 1971 c.743 §432]
137.350
[Repealed by 1987 c.247 §1]
137.360
[Repealed by 1987 c.247 §1]
137.370 Commencement and computation of
term of imprisonment in state penal or correctional institution; sentences
concurrent unless court orders otherwise. (1)
When a person is sentenced to imprisonment in the custody of the Department of
Corrections, the term of confinement therein commences from the day the person
is delivered to the custody of an officer of the Department of Corrections for
the purpose of serving the sentence executed, regardless of whether the
sentence is to be served in a state or federal institution.
(2)
Except as provided in subsections (3) and (4) of this section, when a person is
sentenced to imprisonment in the custody of the Department of Corrections, for
the purpose of computing the amount of sentence served the term of confinement
includes only:
(a)
The time that the person is confined by any authority after the arrest for the
crime for which sentence is imposed; and
(b)
The time that the person is authorized by the Department of Corrections to
spend outside a confinement facility, in a program conducted by or for the
Department of Corrections.
(3)
When a judgment of conviction is vacated and a new sentence is thereafter
imposed upon the defendant for the same crime, the period of detention and
imprisonment theretofore served shall be deducted from the maximum term, and
from the minimum, if any, of the new sentence.
(4)
A person who is confined as the result of a sentence for a crime or conduct
that is not directly related to the crime for which the sentence is imposed, or
for violation of the conditions of probation, parole or post-prison
supervision, shall not receive presentence incarceration credit for the time
served in jail towards service of the term of confinement.
(5)
Unless the court expressly orders otherwise, a term of imprisonment shall be
concurrent with that portion of any sentence previously imposed that remains
unexpired at the time the court imposes sentence. This subsection applies
regardless of whether the earlier sentence was imposed by the same or any other
court, and regardless of whether the earlier sentence is being or is to be
served in the same penal institution or under the same correctional authority
as will be the later sentence. [Amended by 1955 c.660 §15; 1965 c.463 §19; 1967
c.232 §2; 1973 c.562 §2; 1973 c.631 §4; 1981 c.424 §2; 1987 c.251 §4; 1987
c.320 §35; 1995 c.657 §20]
137.372 Credit for time served as part of
probationary sentence. (1) Notwithstanding the
provisions of ORS 137.370 (2)(a), an offender who has been revoked from a
probationary sentence for a felony committed on or after November 1, 1989,
shall receive credit for the time served in jail after arrest and before
commencement of the probationary sentence or for the time served in jail as
part of the probationary sentence unless the sentencing judge orders otherwise.
(2)
Notwithstanding the provisions of ORS 137.320 (4), an offender who has been
ordered confined as part of a probationary sentence for a felony committed on
or after July 18, 1995, shall receive credit for the time served in jail after
arrest and before commencement of the term unless the sentencing judge orders
otherwise. [1989 c.790 §81; 1993 c.692 §4; 1995 c.657 §13]
Note:
137.372 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.375 Release of prisoners whose terms
expire on weekends or legal holidays. When the date
of release from imprisonment of any prisoner in an adult correctional facility
under the jurisdiction of the Department of Corrections, or any prisoner in a
county or city jail, falls on Saturday, Sunday or a legal holiday, the prisoner
shall be released, at the discretion of the releasing authority, on the first,
second or third day preceding the date of release which is not a Saturday,
Sunday or legal holiday. Prisoners of a county or city jail serving a mandatory
minimum term specifically limited to weekends shall be released only at the
time fixed in the sentence. [1953 c.532 §1; 1955 c.660 §16; 1971 c.290 §1; 1979
c.487 §10; 1987 c.320 §36; 2001 c.851 §7]
137.380 Discipline, treatment and
employment of prisoners. A judgment of commitment to the
custody of the Department of Corrections need only specify the duration of
confinement as provided in ORS 137.120. Thereafter the manner of the
confinement and the treatment and employment of a person shall be regulated and
governed by whatever law is then in force prescribing the discipline, treatment
and employment of persons committed. [Amended by 1955 c.32 §1; 1955 c.660 §17;
1959 c.687 §1; 1973 c.836 §268; 1987 c.320 §37]
137.390 Commencement, term and termination
of term of imprisonment in county jail; treatment of prisoners therein.
The commencement, term and termination of a sentence of imprisonment in the
county jail is to be ascertained by the rule prescribed in ORS 137.370, and the
manner of such confinement and the treatment of persons so sentenced shall be
governed by whatever law may be in force prescribing the discipline of county
jails. [Amended by 1973 c.631 §3]
137.400
[Amended by 1953 c.104 §2; 1955 c.662 §6; repealed by 1967 c.372 §13]
137.410
[Repealed by 1967 c.372 §13]
137.420
[Repealed by 1967 c.372 §13]
137.430
[Repealed by 1967 c.372 §13]
137.440 Return by officer executing
judgment; annexation to trial court file. When a
judgment in a criminal action has been executed, the sheriff or officer
executing it shall return to the clerk the warrant or copy of the entry or
judgment upon which the sheriff or officer acted, with a statement of the
doings of the sheriff or officer indorsed thereon, and the clerk shall file the
same and annex it to the trial court file, as defined in ORS 19.005. [Amended
by 1967 c.471 §4]
137.450 Enforcement of money judgment in
criminal action. A judgment against the defendant
or complainant in a criminal action, so far as it requires the payment of a
fine, fee, assessment, costs and disbursements of the action or restitution,
may be enforced as a judgment in a civil action. [Amended by 1973 c.836 §269;
1987 c.709 §1]
137.452 Satisfaction of monetary
obligation imposed as part of sentence; release of judgment lien from real
property; authority of Attorney General. When a person
is convicted of an offense and sentenced to pay any monetary obligation, the
following provisions apply to obtaining a satisfaction of the money award
portion of the judgment or a release of a judgment lien from a specific parcel
of real property when the money award portion of the judgment is not satisfied:
(1)
The Attorney General, by rule, may do any of the following:
(a)
Authorize the Attorney General’s office, a district attorney’s office, any
state agency within the executive branch of government or any specific
individual or group within any of these to:
(A)
Issue satisfactions of the money award portions of judgments; or
(B)
Release a judgment lien from a specific parcel of real property when either the
judgment lien does not attach to any equity in the real property or the amount
of equity in the real property to which the judgment lien attaches, less costs
of sale or other reasonable expenses, is paid upon the judgment.
(b)
Establish procedures and requirements that any person described under paragraph
(a) of this subsection must follow to issue satisfactions or releases.
(2)
Authorization of a person under subsection (1) of this section is permissive
and such person is not required to issue satisfactions or releases if
authorized. However, if a person is authorized under subsection (1) of this
section and does issue satisfactions or releases, the person must comply with
the procedures and requirements established by the Attorney General by rule.
(3)
If the Attorney General establishes a program under subsection (1) of this
section, the Attorney General’s office shall issue satisfactions and releases
under the program unless the Attorney General determines that there are
sufficient other agencies authorized under subsection (1) of this section who
are actually participating in the program to provide reasonable access to
satisfactions and releases on a statewide basis.
(4)(a)
Except as provided in paragraph (b) of this subsection, when the entries in the
register and the financial accounting records for the court show conclusively
that a monetary obligation imposed in a criminal action has been paid in full,
the clerk of the court may note in the register that the money award portion of
the judgment has been paid in full. Notation in the register under this
paragraph constitutes a satisfaction of the money award portion of the
judgment. The clerk of the court is not civilly liable for any act or omission
in making the notation in the register in the manner authorized by this
paragraph.
(b)
When a monetary obligation imposed in a criminal action is paid by a negotiable
instrument, the clerk of the court shall proceed as provided in paragraph (a)
of this subsection only after the expiration of 21 days from the date the
negotiable instrument is received by the court. The clerk may proceed as
provided in paragraph (a) of this subsection before the expiration of the
21-day period if the judgment debtor or any other interested person makes a
request that the clerk proceed and provides information that establishes to the
satisfaction of the clerk that the instrument has been honored.
(c)
This subsection does not authorize the clerk of a court to compromise, settle
or partially satisfy a monetary obligation imposed in a criminal action, or to
release part of any property subject to a judgment lien.
(5)
Any satisfaction issued by a person authorized under this section may be
entered in the same manner and has the same effect on the money award portion
of a judgment as a satisfaction issued for the money award portions of a
judgment from a civil action or proceeding.
(6)
The release of judgment liens on specific parcels of real property by the
Attorney General or by a person authorized by the Attorney General under
subsection (1) of this section is discretionary. The money award portion of the
judgment shall remain a lien against all real property not specifically
released. [1989 c.472 §4; 1993 c.145 §1; 1997 c.801 §68; 2003 c.576 §164]
Note:
137.452 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.460
[Renumbered 137.270]
(Death Sentence)
137.463 Death warrant hearing; death
warrant. (1) When a sentence of death is
pronounced, the clerk of the court shall deliver a copy of the judgment of
conviction and sentence of death to the sheriff of the county. The sheriff
shall deliver the defendant within 20 days from the date the judgment is
entered to the correctional institution designated by the Director of the Department
of Corrections pending the determination of the automatic and direct review by
the Supreme Court under ORS 138.012.
(2)
If the Supreme Court affirms the sentence of death, a death warrant hearing
shall take place in the court in which the judgment was rendered within 30 days
after the effective date of the appellate judgment or, upon motion of the
state, on a later date. The following apply to a death warrant hearing under
this subsection:
(a)
The defendant must be present; and
(b)
The defendant may be represented by counsel. If the defendant was represented
by appointed counsel on automatic and direct review, that counsel’s appointment
continues for purposes of the death warrant hearing and any related matters. If
that counsel is unavailable, the court shall appoint counsel pursuant to the
procedure in ORS 135.050 and 135.055.
(3)(a)
If the defendant indicates the wish to waive the right to counsel for the
purpose of the death warrant hearing, the court shall inquire of the defendant
on the record to ensure that the waiver is competent, knowing and voluntary.
(b)
If the court finds that the waiver is competent, knowing and voluntary, the
court shall discharge counsel.
(c)
If the court finds on the record that the waiver of the right to counsel
granted by this section is not competent, knowing or voluntary, the court shall
continue the appointment of counsel.
(d)
Notwithstanding the fact that the court finds on the record that the defendant
competently, knowingly and voluntarily waives the right to counsel, the court
may continue the appointment of counsel as advisor only for the purposes of the
death warrant hearing.
(4)
At the death warrant hearing, the court:
(a)
After appropriate inquiry, shall make findings on the record whether the defendant
suffers from a mental condition that prevents the defendant from comprehending
the reasons for the death sentence or its implication. The defendant has the
burden of proving by a preponderance of the evidence that the defendant suffers
from a mental condition that prevents the defendant from comprehending the
reasons for the death sentence or its implication.
(b)
Shall advise the defendant that the defendant is entitled to counsel in any
post-conviction proceeding and that counsel will be appointed if the defendant
is financially eligible for appointed counsel at state expense.
(c)
Shall determine whether the defendant intends to pursue any challenges to the
sentence or conviction. If the defendant states on the record that the
defendant does not intend to challenge the sentence or conviction, the court
after advising the defendant of the consequences shall make a finding on the
record whether the defendant competently, knowingly and voluntarily waives the
right to pursue:
(A)
A petition for certiorari to the United States Supreme Court;
(B)
Post-conviction relief under ORS 138.510 to 138.680; and
(C)
Federal habeas corpus review under 28 U.S.C. 2254.
(5)
Following the death warrant hearing, a death warrant, signed by the trial judge
of the court in which the judgment was rendered and attested by the clerk of
that court, shall be drawn and delivered to the superintendent of the
correctional institution designated by the Director of the Department of
Corrections. The death warrant shall specify a day on which the sentence of
death is to be executed and shall authorize and command the superintendent to
execute the judgment of the court. The trial court shall specify the date of
execution of the sentence, taking into consideration the needs of the Department
of Corrections. The trial court shall specify a date not less than 90 days nor
more than 120 days following the effective date of the appellate judgment.
(6)(a)
Notwithstanding any other provision in this section, if the court finds that
the defendant suffers from a mental condition that prevents the defendant from
comprehending the reasons for the sentence of death or its implications, the
court may not issue a death warrant until such time as the court, after
appropriate inquiries, finds that the defendant is able to comprehend the
reasons for the sentence of death and its implications.
(b)(A)
If the court does not issue a death warrant because it finds that the defendant
suffers from a mental condition that prevents the defendant from comprehending
the reasons for the sentence of death or its implications, the court shall
conduct subsequent hearings on the issue on motion of the district attorney or
the defendant’s counsel or on the court’s own motion, upon a showing that there
is substantial reason to believe that the defendant’s condition has changed.
(B)
The court may hold a hearing under this paragraph no more frequently than once
every six months.
(C)
The state and the defendant may obtain an independent medical, psychiatric or
psychological examination of the defendant in connection with a hearing under
this paragraph.
(D)
In a hearing under this paragraph, the defendant has the burden of proving by a
preponderance of the evidence that the defendant continues to suffer from a
mental condition that prevents the defendant from comprehending the reasons for
the sentence of death or its implications.
(7)
If for any reason a sentence of death is not executed on the date appointed in
the death warrant, and the sentence of death remains in force and is not stayed
under ORS 138.686 or otherwise by a court of competent jurisdiction, the court
that issued the initial death warrant, on motion of the state and without
further hearing, shall issue a new death warrant specifying a new date on which
the sentence is to be executed. The court shall specify a date for execution of
the sentence, taking into consideration the needs of the Department of
Corrections. The court shall specify a date not more than 20 days after the
date on which the state’s motion was filed.
(8)
No appeal may be taken from an order issued pursuant to this section. [1984 c.3
§5; 1999 c.1055 §2; 2001 c.962 §96]
137.464 Administrative assessment of
defendant’s mental capacity. (1)(a) At the
death warrant hearing under ORS 137.463, the court shall order that the Oregon
Health Authority or its designee perform an assessment of the defendant’s
mental capacity to engage in reasoned choices of legal strategies and options
if:
(A)
The defendant indicates the wish to waive the right to counsel; and
(B)
The court has substantial reason to believe that, due to mental incapacity, the
defendant cannot engage in reasoned choices of legal strategies and options.
(b)
The court also shall order an assessment described in paragraph (a) of this
subsection upon motion by the state.
(2)
If the requirements of subsection (1) of this section are met, the court may
order the defendant to be committed to a state mental hospital designated by
the authority for a period not exceeding 30 days for the purpose of assessing
the defendant’s mental capacity. The report of any competency assessment
performed under this section must include, but need not be limited to, the
following:
(a)
A description of the nature of the assessment;
(b)
A statement of the mental condition of the defendant; and
(c)
A statement regarding the defendant’s mental capacity to engage in reasoned
choices of legal strategies and options.
(3)
If the competency assessment cannot be conducted because the defendant is
unwilling to participate, the report must so state and must include, if
possible, an opinion as to whether the unwillingness of the defendant is the
result of a mental condition affecting the defendant’s mental capacity to
engage in reasoned choices of legal strategies and options.
(4)
The authority shall file three copies of the report of the competency
assessment with the clerk of the court, who shall cause copies to be delivered
to the district attorney and to counsel for the defendant. [1999 c.1055 §3;
2009 c.595 §96]
Note: 137.464,
137.466, 137.476, 137.478 and 137.482 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 137 or any series
therein by legislative action. See Preface to Oregon Revised Statutes for
further explanation.
137.465 [1979
c.2 §5; repealed by 1981 c.873 §9]
137.466 Judicial determination of
defendant’s mental capacity. (1) If the
court has ordered the Oregon Health Authority to perform a competency
assessment of the defendant under ORS 137.464 and the assessment has been
completed, the court shall determine the issue of the defendant’s mental
capacity to engage in reasoned choices of legal strategies and options. If
neither the state nor counsel for the defendant contests the finding of the
report filed under ORS 137.464, the court may make the determination of the
defendant’s mental capacity to engage in reasoned choices of legal strategies
and options on the basis of the report. If the finding is contested, the court
shall hold a hearing on the issue. If the report is received in evidence at the
hearing, the party contesting the finding has the right to summon and to
cross-examine the psychiatrist or psychologist who submitted the report and to
offer evidence on the issue. Either party may introduce other evidence
regarding the defendant’s mental capacity to engage in reasoned choices of
legal strategies and options.
(2)
If the court determines that, due to mental incapacity, the defendant cannot
engage in reasoned choices of legal strategies and options, the court shall
continue the appointment of counsel provided under ORS 137.463.
(3)
No appeal may be taken from an order issued pursuant to this section. [1999
c.1055 §4; 2009 c.595 §97]
Note: See
note under 137.464.
137.467 Delivery of warrant when place of
trial changed. If the place of trial has been changed,
the death warrant shall be delivered to the sheriff of the county in which the
defendant was tried. [1984 c.3 §6]
137.470 [1979
c.2 §6; repealed by 1981 c.873 §9]
137.473 Means of inflicting death; place
and procedures; acquisition of lethal substance.
(1) The punishment of death shall be inflicted by the intravenous
administration of a lethal quantity of an ultra-short-acting barbiturate in
combination with a chemical paralytic agent and potassium chloride or other
equally effective substances sufficient to cause death. The judgment shall be
executed by the superintendent of the Department of Corrections institution in
which the execution takes place, or by the designee of that superintendent. All
executions shall take place within the enclosure of a Department of Corrections
institution designated by the Director of the Department of Corrections. The
superintendent of the institution shall be present at the execution and shall
invite the presence of one or more physicians or nurse practitioners, the
Attorney General, the sheriff of the county in which the judgment was rendered
and representatives from the media. At the request of the defendant, the
superintendent shall allow no more than two members of the clergy designated by
the defendant to be present at the execution. At the discretion of the
superintendent, no more than five friends and relatives designated by the
defendant may be present at the execution. The superintendent shall allow the
presence of any peace officers as the superintendent thinks expedient.
(2)
The person who administers the lethal injection under subsection (1) of this
section shall not thereby be considered to be engaged in the practice of
medicine.
(3)(a)
Any wholesale drug outlet, as defined in ORS 689.005, registered with the State
Board of Pharmacy under ORS 689.305 may provide the lethal substance or
substances described in subsection (1) of this section upon written order of
the Director of the Department of Corrections, accompanied by a certified copy
of the judgment of the court imposing the punishment.
(b)
For purposes of ORS 689.527 (7) the director shall be considered authorized to
purchase the lethal substance or substances described in subsection (1) of this
section.
(c)
The lethal substance or substances described in subsection (1) of this section
are not controlled substances when purchased, possessed or used for purposes of
this section.
(4)
The superintendent may require that persons who are present at the execution
under subsection (1) of this section view the initial execution procedures,
prior to the point of the administration of the lethal injection, by means of a
simultaneous closed-circuit television transmission under the direction and control
of the superintendent. [1984 c.3 §7; 1987 c.320 §38; 1993 c.137 §1; 2001 c.104 §46;
2001 c.213 §1; 2003 c.103 §4; 2005 c.471 §9]
137.475 [1979
c.2 §7; repealed by 1981 c.873 §9]
137.476 Assistance by licensed health care
professional or nonlicensed medically trained person.
(1) Notwithstanding any other law, a licensed health care professional or a
nonlicensed medically trained person may assist the Department of Corrections
in an execution carried out under ORS 137.473.
(2)
Any assistance rendered in an execution carried out under ORS 137.473 by a
licensed health care professional or a nonlicensed medically trained person is
not cause for disciplinary measures or regulatory oversight by any board,
commission or agency created by this state or governed by state law that
oversees or regulates the practice of health care professionals including, but
not limited to, the Oregon Medical Board, the Oregon State Board of Nursing and
the Oregon Health Authority.
(3)
The infliction of the punishment of death by the administration of the required
lethal substances in the manner required by ORS 137.473 may not be construed to
be the practice of medicine.
(4)
As used in this section, “licensed health care professional” includes, but is
not limited to, a physician, physician assistant, nurse practitioner or nurse
licensed by the Oregon Medical Board or the Oregon State Board of Nursing or an
emergency medical services provider licensed by the Oregon Health Authority. [1999
c.1055 §9; 2011 c.703 §25]
Note: See
note under 137.464.
137.478 Return of death warrant after
execution of sentence of death. Not later
than 30 days after the execution of a sentence of death under ORS 137.473, the
superintendent of the correctional institution where the sentence was executed
shall return the death warrant to the clerk of the trial court from which the
warrant was issued with the superintendent’s return on the death warrant
showing the time, place and manner in which the death warrant was executed. [1999
c.1055 §10]
Note: See
note under 137.464.
137.482 Service of documents on defendant.
A copy of any document filed in any of the following proceedings shall be
served personally on the defendant, even if the defendant is represented by
counsel, by providing the copy to the custodian of the defendant, who shall
ensure that the copy is provided promptly to the defendant:
(1)
A death warrant hearing under ORS 137.463.
(2)
A proceeding in which a person other than the defendant seeks to stay execution
of the defendant’s sentence of death.
(3)
A petition for post-conviction relief filed under ORS 138.510 (2). [1999 c.1055
§16]
Note: See
note under 137.464.
137.510
[Amended by 1955 c.660 §18; 1955 c.688 §1; repealed by 1971 c.743 §432]
PROBATION AND PAROLE BY COMMITTING MAGISTRATE
137.520 Power of committing magistrate to
parole and grant temporary release to persons confined in county jail;
authority of sheriff to release county jail inmates; disposition of work
release earnings. (1) The committing magistrate,
having sentenced a defendant to confinement in a county jail for a period of up
to one year, or as provided by rules adopted by the Oregon Criminal Justice
Commission for felonies committed on or after November 1, 1989, may parole the
defendant outside the county jail subject to condition and subject to being
taken back into confinement upon the breach of such condition. When a court
paroles a defendant under this subsection and the defendant is serving a
sentence or sanction imposed under ORS 423.478 (2)(d) or (e), the court may
order the local supervisory authority to supervise the defendant. The
committing magistrate may also authorize, limit or prohibit the release of a
sentenced defendant upon pass, furlough, leave, work or educational release.
(2)
The committing magistrate, having sentenced a defendant to probation and having
confined the defendant as a condition of that probation in a county jail for a
period up to one year, or having imposed a sentence of probation with
confinement in the county jail in accordance with rules adopted by the Oregon
Criminal Justice Commission for felonies committed on or after November 1,
1989, may authorize, limit or prohibit the release of such person upon pass,
furlough, leave, work or educational release.
(3)
The sheriff of a county in which a defendant is confined in the county jail by
sentence or as a condition of probation may allow the release of the defendant
upon pass, furlough, leave, work or educational release unless otherwise
ordered by the committing magistrate.
(4)
A defendant confined in a county jail and placed upon educational release or
upon work release shall, during the hours in which not so engaged or employed,
be confined in the county jail unless the court by order otherwise directs or
unless the sheriff otherwise directs in the absence of a contrary order by the
court. The defendant’s net earnings shall be paid to the sheriff, who shall
deduct therefrom and pay such sums as may be ordered by the court for the
defendant’s board, restitution, fine, support of dependents and necessary
personal expense. Any balance remaining shall be retained by the sheriff until
the defendant’s discharge from custody, whereupon the balance shall be paid to
the defendant. [Amended by 1959 c.345 §1; 1973 c.836 §270; 1981 c.568 §1; 1989
c.790 §15; 1993 c.14 §8; 1999 c.661 §1]
137.523 Custody of person sentenced to
confinement as condition of probation. For felonies
committed on or after November 1, 1989:
(1)
When the judge sentences the defendant to confinement in a county jail as a
condition of probation, the judge shall sentence the defendant directly to the
custody of the sheriff or the supervisory authority, as defined in rules of the
Oregon Criminal Justice Commission, with jurisdiction over the county jail.
(2)
When the judge recommends a custodial facility or program other than jail as a
condition of probation, the judge shall sentence the defendant directly to the
custody of the supervisory authority, as defined in rules of the Oregon
Criminal Justice Commission, with jurisdiction over the facility or program.
Before imposing such a sentence, the judge must determine from the supervisory
authority that space is available in the facility or program and that the
defendant meets the eligibility criteria established for the facility or
program.
(3)
A record of the time served by the defendant in custody under community
supervision during probation shall be maintained as provided by rules adopted
by the Oregon Criminal Justice Commission. [1989 c.790 §18]
Note:
137.523 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.525 Probation for person convicted of
crime described in ORS 163.305 to 163.467; examination; report; written consent
of convicted person. (1) If a person pleads guilty or
no contest to, or is found guilty of, a crime described in ORS 163.305 to
163.467, and if the court contemplates sentencing the person to probation, the
court, before entering judgment, may order that the person undergo an
examination by a psychiatrist or other physician found qualified and appointed
by the court to determine whether available medical treatment would be likely
to reduce such biological, emotional or psychological impulses, including any
paraphilia, which may be the cause of the criminal conduct and, if so, whether
the person is a suitable candidate medically for such treatment. Such medical
treatments may include the taking of prescribed medication.
(2)
If the examining psychiatrist or other physician reports that available medical
treatment would be likely to reduce the biological, emotional or psychological
impulses that were a probable cause of the criminal conduct, and that the
person is a suitable candidate medically for such treatment, the court may
include as a condition of probation that the person participate in a prescribed
program of medicine and accept medical treatment at the person’s own expense under
the care of the psychiatrist or other physician appointed by the court and that
the person faithfully participate in the prescribed program of medical
treatment during the course of the probation.
(3)
A sentence of probation under this section shall not be imposed except upon the
written consent of the convicted person. Probation under this section may be
revoked upon any failure of the convicted person to cooperate in the treatment
program, including, but not limited to, any failure to meet with the treating
physician as directed by the physician or to take medication or otherwise to
participate in the prescribed program of medical treatment during the course of
the probation. [1987 c.908 §3; 1993 c.14 §9]
137.530 Investigation and report of parole
and probation officers; statement of victim. (1)
Parole and probation officers, when directed by the court, shall fully
investigate and report to the court in writing on the circumstances of the
offense, criminal record, social history and present condition and environment
of any defendant. Unless the court directs otherwise in individual cases, a
defendant may not be sentenced to probation until the report of the
investigation has been presented to and considered by the court.
(2)
Whenever a presentence report is made, the preparer of the report shall make a
reasonable effort to contact the victim and obtain a statement describing the
effect of the defendant’s offense upon the victim. If the victim is under 18
years of age, the preparer shall obtain the consent of the victim’s parent or
guardian before contacting the victim. The preparer of the report shall include
the statement of the victim in the presentence investigation report. If the
preparer is unable to contact the victim or if the victim declines to make a
statement, the preparer shall report that the preparer was unable to contact
the victim after making reasonable efforts to do so, or, if contact was made
with the victim, that the victim declined to make a statement for purposes of
this section. Before taking a statement from the victim, the preparer of the
report shall inform the victim that the statement will be made available to the
defendant and the defendant’s attorney prior to sentencing as required under
ORS 137.079.
(3)
Whenever desirable, and facilities exist for conducting physical and mental
examinations, the investigation shall include physical and mental examinations
of such defendants.
(4)
As used in this section, “victim” means the person or persons who have suffered
financial, social, psychological or physical harm as a result of an offense,
and includes, in the case of any homicide or abuse of corpse in any degree, an
appropriate member of the immediate family of the decedent. [Amended by 1983
c.723 §1; 1993 c.14 §10; 1993 c.294 §4; 2005 c.264 §2]
137.533 Probation without entering
judgment of guilt; when appropriate; effect of violating condition of
probation. (1) Whenever a person pleads guilty to
or is found guilty of a misdemeanor other than driving while under the
influence of intoxicants or other than a misdemeanor involving domestic
violence as defined in ORS 135.230, the court may defer further proceedings and
place the person on probation, upon motion of the district attorney and without
entering a judgment of guilt, if the person:
(a)
Consents to the disposition;
(b)
Has not previously been convicted of any offense in any jurisdiction;
(c)
Has not been placed on probation under ORS 475.245;
(d)
Has not completed a diversion under ORS 135.881 to 135.901; and
(e)
Agrees to pay a fee equal to $100. The person must pay the amount within 90
days of imposition unless the court allows payment at a later time.
(2)
A district attorney may submit a motion under subsection (1) of this section
if, after considering the factors listed in subsection (3) of this section, the
district attorney finds that disposition under this section would be in the
interests of justice and of benefit to the person and the community.
(3)
In determining whether disposition under this section is in the interests of
justice and of benefit to the person and the community, the district attorney
shall consider at least the following factors:
(a)
The nature of the offense. However, the offense must not have involved injury
to another person.
(b)
Any special characteristics or difficulties of the person.
(c)
Whether there is a probability that the person will cooperate with and benefit
from alternative treatment.
(d)
Whether an available program is appropriate to the needs of the person.
(e)
The impact of the disposition upon the community.
(f)
Recommendations, if any, of the involved law enforcement agency.
(g)
Recommendations, if any, of the victim.
(h)
Provisions for restitution.
(i)
Any mitigating circumstances.
(4)
Upon violation of a term or condition of probation, the court may enter an
adjudication of guilt and proceed as otherwise provided. Upon the person’s
fulfillment of the terms and conditions of probation, the court shall discharge
the person and dismiss the proceedings against the person. A discharge and
dismissal under this section is without adjudication of guilt and is not a
conviction for purposes of disqualifications or disabilities imposed by law
upon conviction of a crime. A person may be discharged and have proceedings
dismissed only once under this section.
(5)
Subsections (1) to (4) of this section do not affect any domestic violence
sentencing programs. [1999 c.819 §§1,2; 2011 c.597 §124]
Note:
137.533 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.540 Conditions of probation;
evaluation and treatment; fees; effect of failure to abide by conditions;
modification. (1) The court may sentence the
defendant to probation subject to the following general conditions unless
specifically deleted by the court. The probationer shall:
(a)
Pay supervision fees, fines, restitution or other fees ordered by the court.
(b)
Not use or possess controlled substances except pursuant to a medical
prescription.
(c)
Submit to testing for controlled substance or alcohol use if the probationer
has a history of substance abuse or if there is a reasonable suspicion that the
probationer has illegally used controlled substances.
(d)
Participate in a substance abuse evaluation as directed by the supervising
officer and follow the recommendations of the evaluator if there are reasonable
grounds to believe there is a history of substance abuse.
(e)
Remain in the State of Oregon until written permission to leave is granted by
the Department of Corrections or a county community corrections agency.
(f)
If physically able, find and maintain gainful full-time employment, approved
schooling, or a full-time combination of both. Any waiver of this requirement
must be based on a finding by the court stating the reasons for the waiver.
(g)
Change neither employment nor residence without prior permission from the
Department of Corrections or a county community corrections agency.
(h)
Permit the parole and probation officer to visit the probationer or the
probationer’s work site or residence and to conduct a walk-through of the
common areas and of the rooms in the residence occupied by or under the control
of the probationer.
(i)
Consent to the search of person, vehicle or premises upon the request of a
representative of the supervising officer if the supervising officer has
reasonable grounds to believe that evidence of a violation will be found, and
submit to fingerprinting or photographing, or both, when requested by the
Department of Corrections or a county community corrections agency for
supervision purposes.
(j)
Obey all laws, municipal, county, state and federal.
(k)
Promptly and truthfully answer all reasonable inquiries by the Department of
Corrections or a county community corrections agency.
(L)
Not possess weapons, firearms or dangerous animals.
(m)
If recommended by the supervising officer, successfully complete a sex offender
treatment program approved by the supervising officer and submit to polygraph
examinations at the direction of the supervising officer if the probationer:
(A)
Is under supervision for a sex offense under ORS 163.305 to 163.467;
(B)
Was previously convicted of a sex offense under ORS 163.305 to 163.467; or
(C)
Was previously convicted in another jurisdiction of an offense that would
constitute a sex offense under ORS 163.305 to 163.467 if committed in this
state.
(n)
Participate in a mental health evaluation as directed by the supervising
officer and follow the recommendation of the evaluator.
(o)
Report as required and abide by the direction of the supervising officer.
(p)
If required to report as a sex offender under ORS 181.596, report with the
Department of State Police, a city police department, a county sheriff’s office
or the supervising agency:
(A)
When supervision begins;
(B)
Within 10 days of a change in residence;
(C)
Once each year within 10 days of the probationer’s date of birth;
(D)
Within 10 days of the first day the person works at, carries on a vocation at
or attends an institution of higher education; and
(E)
Within 10 days of a change in work, vocation or attendance status at an
institution of higher education.
(2)
In addition to the general conditions, the court may impose any special
conditions of probation that are reasonably related to the crime of conviction
or the needs of the probationer for the protection of the public or reformation
of the probationer, or both, including, but not limited to, that the
probationer shall:
(a)
For crimes committed prior to November 1, 1989, and misdemeanors committed on
or after November 1, 1989, be confined to the county jail or be restricted to
the probationer’s own residence or to the premises thereof, or be subject to
any combination of such confinement and restriction, such confinement or
restriction or combination thereof to be for a period not to exceed one year or
one-half of the maximum period of confinement that could be imposed for the offense
for which the defendant is convicted, whichever is the lesser.
(b)
For felonies committed on or after November 1, 1989, be confined in the county
jail, or be subject to other custodial sanctions under community supervision,
or both, as provided by rules of the Oregon Criminal Justice Commission.
(c)
For crimes committed on or after December 5, 1996, sell any assets of the
probationer as specifically ordered by the court in order to pay restitution.
(3)
When a person who is a sex offender is released on probation, the court shall
impose as a special condition of probation that the person not reside in any
dwelling in which another sex offender who is on probation, parole or
post-prison supervision resides, without the approval of the person’s supervising
parole and probation officer, or in which more than one other sex offender who
is on probation, parole or post-prison supervision resides, without the
approval of the director of the probation agency that is supervising the person
or of the county manager of the Department of Corrections, or a designee of the
director or manager. As soon as practicable, the supervising parole and
probation officer of a person subject to the requirements of this subsection
shall review the person’s living arrangement with the person’s sex offender
treatment provider to ensure that the arrangement supports the goals of
offender rehabilitation and community safety. As used in this subsection:
(a)
“Dwelling” has the meaning given that term in ORS 469B.100.
(b)
“Dwelling” does not include a residential treatment facility or a halfway
house.
(c)
“Halfway house” means a publicly or privately operated profit or nonprofit
residential facility that provides rehabilitative care and treatment for sex
offenders.
(d)
“Sex offender” has the meaning given that term in ORS 181.594.
(4)(a)
If the person is released on probation following conviction of a sex crime, as
defined in ORS 181.594, or an assault, as defined in ORS 163.175 or 163.185,
and the victim was under 18 years of age, the court, if requested by the
victim, shall include as a special condition of the person’s probation that the
person not reside within three miles of the victim unless:
(A)
The victim resides in a county having a population of less than 130,000 and the
person is required to reside in that county;
(B)
The person demonstrates to the court by a preponderance of the evidence that no
mental intimidation or pressure was brought to bear during the commission of
the crime;
(C)
The person demonstrates to the court by a preponderance of the evidence that
imposition of the condition will deprive the person of a residence that would
be materially significant in aiding in the rehabilitation of the person or in
the success of the probation; or
(D)
The person resides in a halfway house. As used in this subparagraph, “halfway
house” means a publicly or privately operated profit or nonprofit residential
facility that provides rehabilitative care and treatment for sex offenders.
(b)
A victim may request imposition of the special condition of probation described
in this subsection at the time of sentencing in person or through the
prosecuting attorney.
(c)
If the court imposes the special condition of probation described in this
subsection and if at any time during the period of probation the victim moves
to within three miles of the probationer’s residence, the court may not require
the probationer to change the probationer’s residence in order to comply with
the special condition of probation.
(5)
When a person who is a sex offender, as defined in ORS 181.594, is released on
probation, the Department of Corrections or the county community corrections
agency, whichever is appropriate, shall notify the city police department, if
the person is going to reside within a city, and the county sheriff’s office of
the county in which the person is going to reside of the person’s release and
the conditions of the person’s release.
(6)
Failure to abide by all general and special conditions imposed by the court and
supervised by the Department of Corrections or a county community corrections
agency may result in arrest, modification of conditions, revocation of
probation or imposition of structured, intermediate sanctions in accordance
with rules adopted under ORS 137.595.
(7)
The court may order that probation be supervised by the court. If the court
orders that probation be supervised by the court, the defendant shall pay a fee
of $100 to the court. Fees imposed under this subsection in the circuit court
shall be deposited by the clerk of the court in the General Fund. Fees imposed
in a justice court under this subsection shall be paid to the county treasurer.
Fees imposed in a municipal court under this subsection shall be paid to the
city treasurer.
(8)
The court may at any time modify the conditions of probation.
(9)
A court may not order revocation of probation as a result of the probationer’s
failure to pay restitution unless the court determines from the totality of the
circumstances that the purposes of the probation are not being served.
(10)
It is not a cause for revocation of probation that the probationer failed to
apply for or accept employment at any workplace where there is a labor dispute
in progress. As used in this subsection, “labor dispute” has the meaning for
that term provided in ORS 662.010.
(11)
If the court determines that a defendant has violated the terms of probation,
the court shall collect a $25 fee from the defendant. The fee becomes part of
the judgment and may be collected in the same manner as a fine. Fees collected
under this subsection in the circuit court shall be deposited by the clerk of
the court in the General Fund. Fees collected in a justice court under this
subsection shall be paid to the county treasurer. Fees collected in a municipal
court under this subsection shall be paid to the city treasurer.
(12)
As used in this section, “attends,” “institution of higher education,” “works”
and “carries on a vocation” have the meanings given those terms in ORS 181.594.
[Amended by 1965 c.346 §1; 1969 c.597 §125; 1977 c.371 §3; 1977 c.380 §2; 1981
c.671 §1; 1983 c.588 §2; 1985 c.818 §2; 1987 c.780 §3; 1989 c.790 §16; 1991
c.196 §1; 1991 c.630 §5; 1991 c.731 §1; 1993 c.14 §11; 1993 c.680 §16; 1997
c.313 §24; 1999 c.626 §11; amendments by 1999 c.626 §34 repealed by 2001 c.884 §1;
2001 c.726 §§1,2; 2001 c.884 §5; 2005 c.264 §3; 2005 c.558 §1; 2005 c.567 §8;
2005 c.576 §1a; 2005 c.642 §1; 2009 c.111 §1; 2009 c.204 §5; 2009 c.659 §§21,23;
2009 c.713 §11; 2011 c.595 §162]
137.545 Period of probation; discharge
from probation; proceedings in case of violation of conditions.
(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. If the defendant was sentenced to a presumptive period of
probation, the court may not impose a term of incarceration that exceeds 60
days as a revocation sanction unless the revocation is the result of the
defendant’s conviction for a new crime.
(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)
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 of any hearing before the court that may result in
the revocation of the defendant’s probation for a felony or person Class A
misdemeanor. The notification shall be provided by:
(A)
The district attorney if the defendant is not supervised by the supervisory
authority or if the defendant is supervised by the supervisory authority and
the district attorney initiates a request with the court for a probation
violation or revocation hearing.
(B)
The supervisory authority if the defendant is supervised by the supervisory
authority and the supervisory authority initiates a request with the court for
a probation violation or revocation hearing.
(b)
To appear personally at the hearing.
(c)
If present, to reasonably express any views relevant to the issues before the
court.
(12)
As used in this section:
(a)
“Person Class A misdemeanor” has the meaning given that term in the rules of
the Oregon Criminal Justice Commission.
(b)
“Supervisory authority” has the meaning given that term in ORS 144.087. [Formerly
137.550; 2003 c.577 §14; 2005 c.264 §4; 2005 c.566 §11; 2009 c.178 §28; 2009
c.660 §§20,32; 2011 c.596 §1]
Note: The
amendments to 137.545 by section 5, chapter 596, Oregon Laws 2011, become
operative July 1, 2013, and apply to crimes committed on or after July 1, 2013.
See section 6, chapter 596, Oregon Laws 2011. The text that is operative on and
after July 1, 2013, is set forth for the user’s convenience.
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)
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 of any hearing before the court that may result in
the revocation of the defendant’s probation for a felony or person Class A
misdemeanor. The notification shall be provided by:
(A)
The district attorney if the defendant is not supervised by the supervisory
authority or if the defendant is supervised by the supervisory authority and
the district attorney initiates a request with the court for a probation
violation or revocation hearing.
(B)
The supervisory authority if the defendant is supervised by the supervisory
authority and the supervisory authority initiates a request with the court for
a probation violation or revocation hearing.
(b)
To appear personally at the hearing.
(c)
If present, to reasonably express any views relevant to the issues before the
court.
(12)
As used in this section:
(a)
“Person Class A misdemeanor” has the meaning given that term in the rules of
the Oregon Criminal Justice Commission.
(b)
“Supervisory authority” has the meaning given that term in ORS 144.087.
137.547 Consolidation of probation violation
proceedings; rules. (1) Notwithstanding any other
provision of law, the Chief Justice of the Supreme Court may make rules or
issue orders under ORS 1.002 to establish procedures for the consolidation of
probation violation proceedings pending against a probationer in multiple
circuit courts.
(2)
Rules made or orders issued under this section:
(a)
Shall provide that if a probationer is alleged to have violated the conditions
of a sentence of probation in more than one court, an initiating court may
consider consolidation of some or all pending probation violation proceedings
before one or more appropriate courts:
(A)
Upon the motion of the district attorney or the defense counsel in the county
in which the probationer is in custody or otherwise before the court; or
(B)
Upon the court’s own motion.
(b)
May determine which courts are appropriate courts for the consolidation of
probation violation proceedings in described circumstances or establish a
process for determining an appropriate court.
(c)
Shall require the consent of the probationer to a consolidated probation violation
proceeding and written waivers by the probationer as determined necessary or
fair.
(d)
Shall require the approval of the judge of any responding court, the initiating
court and any appropriate court being considered for a consolidated probation
violation proceeding.
(e)
Shall require the approval of the district attorney of the county for any
responding court, the initiating court and any court being considered as an
appropriate court.
(f)
May provide for the recall of warrants in any court other than the appropriate
court as convenient to accomplish the purposes of this section.
(g)
May provide for the transmission of copies of such papers, records or other
information to or from courts, district attorneys and parole and probation
officers as is necessary, appropriate or convenient for a consolidated
probation violation proceeding under this section.
(h)
May provide any processes necessary, appropriate or convenient for the
proceeding before the appropriate court and for the appropriate court to make a
disposition of the cases that are consolidated in a proceeding under this
section.
(i)
May include any rules or orders establishing other procedures necessary,
appropriate or convenient for the fair and expeditious resolution of
consolidated probation violation proceedings under this section.
(3)
When an appropriate court transmits the judgment it enters for a consolidated
probation violation proceeding under this section to the initiating court, if
different from the appropriate court, and to a responding court for filing,
thereafter that judgment is for all purposes the same as a judgment of the
court of the initiating or responding county with regard to the matters on
which that judgment makes determination and disposition.
(4)
As used in this section:
(a)
“Appropriate court” means the court most appropriate to hold a consolidated
probation violation proceeding under this section given the totality of the
circumstances involving the alleged probation violations and multiple
jurisdiction proceedings. The circumstances include, but are not limited to:
(A)
The location, residence or work location of the probationer;
(B)
The location of the probationer’s parole and probation officer;
(C)
The location of any witnesses or victims of the alleged violations or of any
alleged new offenses with which the probationer is charged;
(D)
The location of any victims of the offense for which the probationer was
sentenced to probation;
(E)
The nature and location of previous offenses for which the probationer is
serving a sentence;
(F)
The nature of any new offenses with which the probationer is charged;
(G)
The resources of local jails;
(H)
The nature and location of any services that may be appropriate as a
consequence of the alleged violation or new charges;
(I)
Whether the judge who imposed the original sentence provided in the original
judgment direction to return any probation violation proceedings to that judge;
and
(J)
The interests of local courts and district attorneys concerning the probationer
and any disposition that a court may impose concerning the probationer.
(b)
“Initiating court” means the court in which a probationer is in custody or
otherwise before the court.
(c)
“Responding court” means a court other than an initiating court or appropriate
court that entered a judgment under which the probationer is currently serving
a sentence of probation and which court consents to the consolidation of
probation violation proceedings in an appropriate court under this section. [1999
c.614 §1; 2005 c.264 §5]
Note:
137.547 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.550
[Amended by 1955 c.688 §2; 1965 c.346 §2; 1971 c.743 §326; 1987 c.908 §1; 1989
c.790 §17; 1991 c.196 §2; 1993 c.14 §12; 1993 c.581 §2; 1993 c.680 §17; 1997
c.313 §11; 1999 c.614 §2; renumbered 137.545 in 1999]
137.551 Revocation of probationary sentences;
release dates; rules. (1) The State Board of Parole
and Post-Prison Supervision shall adopt rules to establish release dates for
revocations of probationary sentences imposed for felonies committed before
November 1, 1989.
(2)
To the extent permissible under law, the release dates for revocation of
probationary sentences imposed for felonies committed before November 1, 1989,
shall be set consistent with sanctions for probation revocations as provided by
rules of the Oregon Criminal Justice Commission for felonies committed on or
after November 1, 1989. [1989 c.790 §18a]
Note:
137.551 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.553 Use of citations for probation
violations authorized. (1) In addition to any authority
granted under ORS 137.545, a court may authorize the use of citations to direct
its probationers who violate conditions of probation to appear before the
court. The following apply to the use of citations under this subsection:
(a)
A court may authorize issuance of citations under this subsection only by
officers who are permitted under ORS 137.545 to make an arrest without a warrant.
(b)
Nothing in this subsection limits the authority, under ORS 137.545, of a parole
and probation officer, police officer or other officer to arrest for violation
of conditions of probation even if the officer is authorized under this section
to issue a citation.
(c)
A court may impose any conditions upon an authorization under this subsection
that the court considers appropriate. The conditions may include, but are not
limited to, requirements that citation authority be sought on a case-by-case basis,
provision for citation in all cases that meet certain conditions, allowance of
citation for certain types of cases or designation of certain cases where
citations shall not be used.
(2)
The cited probationer shall appear before the court at the time, date and court
specified in the citation. If the probationer fails to appear at the time, date
and court specified in the citation, the court may issue a warrant of arrest,
upon the request of the supervisor of probation, or upon request of the
district attorney, or upon the court’s own motion. [1987 c.761 §2; 2005 c.264 §6]
137.557 Citation; procedure; contents.
(1) If a citation is issued under ORS 137.553, the officer who issues the
citation shall serve one copy of the citation to the probationer who is cited
to appear and shall, as soon as practicable, file a duplicate copy with the
court in which the probationer is cited to appear, along with proof of service.
(2)
Each copy of the citation issued under ORS 137.553 shall contain:
(a)
The name of the court at which the cited probationer is to appear.
(b)
The name of the probationer cited.
(c)
A brief description of the asserted probation violation, the date, the time and
the place at which the violation occurred, the date on which the citation was issued
and the name of the officer who issued the citation.
(d)
The time, date and place at which the cited probationer is to appear in court.
(e)
A notice to the effect that:
(A)
The citation is not itself a motion to revoke probation, but that such a motion
will be filed and a copy provided to the probationer when the probationer
appears at court;
(B)
The probationer must appear in court at the time set in the citation; and
(C)
If the probationer fails to appear as directed, the court may immediately issue
a warrant for the probationer’s arrest or the probationer may immediately be
taken into custody by the officer responsible for supervising the probation. [1987
c.761 §3]
137.560 Copies of certain judgments to be
sent to Department of Corrections. Within 10
days following the issuing of any judgment of suspension of imposition or
execution of sentence or of probation of any person convicted of a crime, or of
the continuation, extension, modification or revocation of any such judgment,
or of the discharge of such person, or the recommendation by the court to the
Governor of the pardon of such person, provided such person is under the
jurisdiction of the Department of Corrections, the court issuing such a
judgment shall cause prompt delivery of a copy of the same to the Director of
the Department of Corrections. [Amended by 1973 c.836 §271; 1979 c.75 §1; 1987
c.320 §39; 1991 c.111 §16; 1993 c.18 §23]
137.570 Authority to transfer probationer
from one agency to another; procedure. A court may
transfer a person on probation under its jurisdiction from the supervision of
one probation agency to that of another probation agency. Whenever a person
sentenced to probation resides in or is to remove to a locality outside the
jurisdiction of the court that sentenced the person to probation, the court may
transfer the person to a parole and probation officer appointed to serve for
the locality in which the person resides or to which the person is to remove:
(1)
If the parole and probation officer sends to the court desiring to make such
transfer a written statement that the parole and probation officer will
exercise supervision over the person.
(2)
If the statement is approved in writing by the judge of the court to which the
parole and probation officer is attached. [Amended by 1973 c.836 §272; 1993
c.14 §13; 2005 c.264 §7]
137.580 Effect of transfer of probationer
from one agency to another. Whenever the transfer mentioned
in ORS 137.570 is made, the court making it shall send to the probation agency
to whose supervision the probationer is transferred a copy of all the records
of the court as to the offense, criminal record and social history of the
probationer. The probation agency shall report concerning the conduct and
progress of the probationer to the court that sentenced the probationer to
probation. Parole and probation officers or agencies shall have, with respect
to persons transferred to their supervision from any other jurisdiction, all
the powers and be subject to all the duties now imposed by law upon them in
regard to probationers received on probation from courts in their own
jurisdiction. [Amended by 1973 c.836 §273; 1993 c.14 §14; 2005 c.264 §8]
137.590 Appointment of parole and
probation officers and assistants; chief parole and probation officer.
The judge or judges of any court of criminal jurisdiction, including municipal
courts, may appoint, with the prior approval of the governing body of the
county or city involved, and at pleasure remove, parole and probation officers
and clerical assistants that may be necessary. Parole and probation officers
appointed by the court shall be selected because of definite qualifications as
to character, personality, ability and training. In courts where more than one
parole and probation officer is appointed, one shall be designated chief parole
and probation officer and shall have general supervision of the probation work
of parole and probation officers appointed by and under the direction of the
court. Appointments shall be in writing and entered on the records of the
court. Parole and probation officers and clerical assistants appointed under
this section are not state officers or employees, and their compensation and
expenses shall not be paid by the state. [Amended by 1971 c.633 §12; 1973 c.836
§274; 1981 s.s. c.3 §38; 2005 c.264 §9]
137.592 Policy regarding probation
violations. The Legislative Assembly finds that:
(1)
To protect the public, the criminal justice system must compel compliance with
the conditions of probation by responding to violations with swift, certain and
fair punishments.
(2)
Decisions to incarcerate offenders in state prisons for violation of the
conditions of probation must be made upon a reasonably systematic basis that
will insure that available prison space is used to house those offenders who
constitute a serious threat to the public, taking into consideration the
availability of both prison space and local resources. [1993 c.680 §8]
Note:
137.592 to 137.599 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 137 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
137.593 Duty of corrections agencies to
impose structured, intermediate sanctions for probation violations.
(1) Except as otherwise provided in subsection (2) of this section, when a
court suspends the imposition or execution of sentence and places a defendant
on probation, or sentences a defendant to probation under the rules of the
Oregon Criminal Justice Commission and orders a defendant placed under the
supervision of the Department of Corrections or a county community corrections
agency, the Department of Corrections or the county community corrections
agency shall impose structured, intermediate sanctions for the violation of
conditions of probation in accordance with rules adopted under ORS 137.595.
Under no circumstances may the Department of Corrections or a county community
corrections agency revoke probation.
(2)
Notwithstanding ORS 137.124 and 423.478 and any other provision of law, the
sentencing judge shall retain authority:
(a)
To revoke probation and receive recommendations regarding revocation of
probation from the supervising officer made in accordance with rules adopted
under ORS 137.595;
(b)
To determine whether conditions of probation have been violated and to impose
sanctions for the violations if the court, at the time of sentencing, states on
the record that the court is retaining such authority;
(c)
To cause a probationer to be brought before the court for a hearing upon motion
of the district attorney or the court’s own motion prior to the imposition of
any structured, intermediate sanctions or within four judicial days after
receiving notice that a structured, intermediate sanction has been imposed on
the probationer pursuant to rules adopted under ORS 137.595 and to revoke
probation or impose such other or additional sanctions or modify the conditions
of probation as authorized by law; and
(d)
To impose and require an offender to serve a period of incarceration not to
exceed 180 days as a sanction for revocation of probation.
(3)
In no case may the sentencing judge cause a probationer to be brought before
the court for a hearing and revoke probation or impose other or additional sanctions
after the probationer has completed a structured, intermediate sanction imposed
by the Department of Corrections or a county community corrections agency
pursuant to rules adopted under ORS 137.595. [1993 c.680 §10; 1995 c.423 §9a]
Note: See
note under 137.592.
137.595 Establishing system of sanctions;
rules. (1) The Department of Corrections shall
adopt rules to carry out the purposes of chapter 680, Oregon Laws 1993, by
establishing a system of structured, intermediate probation violation sanctions
that may be imposed by the Department of Corrections or a county community
corrections agency, taking into consideration the severity of the violation
behavior, the prior violation history, the severity of the underlying criminal
conviction, the criminal history of the offender, protection of the community,
deterrence, the effective capacity of the state prisons and the availability of
appropriate local sanctions including, but not limited to, jail, community
service work, house arrest, electronic surveillance, restitution centers, work
release centers, day reporting centers or other local sanctions.
(2)
Rules adopted by the Department of Corrections under this section shall
establish:
(a)
A system of structured, intermediate probation violation sanctions that may be
imposed by the Department of Corrections or a county community corrections
agency on a probationer who waives in writing a probation violation hearing,
admits or affirmatively chooses not to contest the violations alleged in a
probation violation report and consents to the sanctions;
(b)
Procedures to provide a probationer with written notice of the probationer’s
right to a hearing before the court to determine whether the probationer
violated the conditions of probation alleged in a probation violation report,
and if so, whether to continue the probationer on probation subject to the same
or modified conditions, or order sanctions for any violations and the right to
be represented by counsel at the hearing if the probationer is financially
eligible;
(c)
Procedures for a probationer to waive in writing a probation violation hearing,
admit or not contest the violations alleged in the probation violation report
and consent to the imposition of structured, intermediate sanctions by the
Department of Corrections or a county community corrections agency;
(d)
The level and type of sanctions that may be imposed by parole and probation
officers and by supervisory personnel;
(e)
The level and type of violation behavior warranting a recommendation to the
court that probation be revoked;
(f)
Procedures for notifying district attorneys and the courts of probation
violations admitted by probationers and the sanctions imposed by the Department
of Corrections or county community corrections agencies; and
(g)
Such other policies or procedures as are necessary to carry out the purposes of
chapter 680, Oregon Laws 1993.
(3)
Jail confinement imposed as a custodial sanction by the Department of
Corrections or a county community corrections agency pursuant to rules adopted
under this section may not exceed 60 days per violation report. The total
number of days of jail confinement for all violation reports per conviction may
not exceed the maximum number of available jail custody units under rules
adopted by the Oregon Criminal Justice Commission.
(4)
Nonjail confinement imposed as a custodial sanction by the Department of
Corrections or a county community corrections agency pursuant to rules adopted
under this section may not exceed the maximum number of available nonjail
custody units under rules adopted by the Oregon Criminal Justice Commission. [1993
c.680 §11; 1999 c.121 §1; 2001 c.962 §93; 2005 c.264 §10]
Note: See
note under 137.592.
Note:
Legislative Counsel has substituted “chapter 680, Oregon Laws 1993,” for the
words “this Act” in section 11, chapter 680, Oregon Laws 1993, compiled as
137.595. Specific ORS references have not been substituted, pursuant to
173.160. These sections may be determined by referring to the 1993 Comparative
Section Table located in Volume 20 of ORS.
137.596 Probation violations; custodial
sanctions; rules. The Oregon Criminal Justice
Commission shall amend its rules to increase the jail and nonjail custody units
that can be imposed as custodial sanctions for probation violations under ORS
137.595. The commission shall base the amendments on the existing rule
structure and may not increase existing sanction limits by more than 60 days. [2001
c.737 §1]
Note: See
note under 137.592.
137.597 Probationer may consent to imposition
of sanctions. Subject to rules adopted under ORS
137.595, after receiving written notification of rights, a probationer may
waive in writing a probation violation hearing, admit or not contest the
violations alleged in the probation violation report and consent to the
imposition of structured, intermediate sanctions by the Department of
Corrections or a county community corrections agency pursuant to rules adopted
under ORS 137.595. [1993 c.680 §12]
Note: See
note under 137.592.
137.599 Hearing prior to, or after,
imposition of sanctions. Prior to the imposition of any
structured, intermediate sanction or within four judicial days after receiving
notice that a structured, intermediate sanction has been imposed on a
probationer pursuant to rules adopted under ORS 137.595, the court, upon motion
of the district attorney or on its own motion, may cause the probationer to be
brought before the court for a hearing, and may revoke probation or impose such
other or additional sanctions or modify the conditions of probation as
authorized by law. In no case may the sentencing judge cause a probationer to
be brought before the court for a hearing and revoke probation or impose other
or additional sanctions after the probationer has completed a structured, intermediate
sanction imposed by the Department of Corrections or a county community
corrections agency pursuant to rules adopted under ORS 137.595. [1993 c.680 §13]
Note: See
note under 137.592.
137.600
[Repealed by 1955 c.491 §9]
137.610 Performance by Department of
Corrections staff of duties of parole and probation officers appointed by
judge. The judge or judges of any court of
criminal jurisdiction, including municipal courts, may request at any time the
staff of the Department of Corrections to perform any of the duties that might
be required of a parole and probation officer appointed by the court pursuant
to ORS 137.590. All requests for services of the staff shall be made upon the
Director of the Department of Corrections, who shall order the prompt
performance of any such requested service whenever members of the staff are
available for such duty. [Amended by 1969 c.597 §126; 1987 c.320 §40; 2005
c.264 §11]
137.620 Powers of parole and probation
officers; oath of office; bond; audit of accounts.
(1) As used in this section, “parole and probation officer” has the meaning
given that term in ORS 181.610.
(2)
Parole and probation officers of the Department of Corrections or a county
community corrections agency and those appointed by the court have the powers
of peace officers in the execution of their duties, but are not active members
of the regular police force. Each parole and probation officer appointed by the
court, before entering on the duties of office, shall take an oath of office.
Each parole and probation officer who collects or has custody of money shall
execute a bond in a penal sum to be fixed by the court, with sufficient
sureties approved thereby, conditioned for the honest accounting of all money
received by the parole and probation officer as a parole and probation officer.
The accounts of all parole and probation officers are subject to audit at any
time by the proper fiscal authorities. [Amended by 1973 c.836 §275; 1987 c.320 §41;
2005 c.264 §1]
137.630 Duties of parole and probation
officers. (1) The duties of parole and probation
officers appointed pursuant to ORS 137.590 or 423.500 to 423.560 are:
(a)
To make investigations and reports under ORS 137.530 as are required by the
judge of any court having jurisdiction within the county, city or judicial
district for which the officer is appointed to serve.
(b)
To receive under supervision any person sentenced to probation by any court in
the jurisdiction area for which the officers are appointed to serve.
(c)
To provide release assistance, and supervise any person placed in a diversion,
work release or community services alternative program, by any court in the
jurisdiction area for which the officers are appointed to serve.
(d)
To give each person under their supervision a statement of the conditions of
probation or program participation and to instruct the person regarding the
conditions.
(e)
To keep informed concerning the conduct and condition of persons under their
supervision by visiting, requiring reports and otherwise.
(f)
To use all suitable methods, not inconsistent with the condition of probation
or program participation, to aid and encourage persons under their supervision
and to effect improvement in their conduct and condition.
(g)
To keep detailed records of the work done and to make reports to the courts and
to the Department of Corrections as the courts require.
(h)
To perform other duties not inconsistent with the normal and customary
functions of parole and probation officers as may be required by any court in
the jurisdiction area for which the officers are appointed to serve.
(2)
Parole and probation officers of the Department of Corrections have duties as
specified by rule adopted by the Director of the Department of Corrections.
(3)
Notwithstanding subsection (2) of this section, parole and probation officers
may not be required to collect from persons under their supervision any fees to
offset the costs of supervising the probation, including but not limited to
those ordered pursuant to ORS 137.540 or 423.570. [Amended by 1969 c.597 §127;
1981 c.447 §1; 1987 c.320 §42; 1993 c.14 §15; 2005 c.264 §12]
DETERMINATE SENTENCES
137.635 Determinate sentences required for
certain felony convictions. (1) When, in the case of a
felony described in subsection (2) of this section, a court sentences a
convicted defendant who has previously been convicted of any felony designated
in subsection (2) of this section, the sentence shall not be an indeterminate
sentence to which the defendant otherwise would be subject under ORS 137.120,
but, unless it imposes a death penalty under ORS 163.105, the court shall
impose a determinate sentence, the length of which the court shall determine,
to the custody of the Department of Corrections. Any mandatory minimum sentence
otherwise provided by law shall apply. The sentence shall not exceed the
maximum sentence otherwise provided by law in such cases. The convicted
defendant who is subject to this section shall not be eligible for probation.
The convicted defendant shall serve the entire sentence imposed by the court
and shall not, during the service of such a sentence, be eligible for parole or
any form of temporary leave from custody. The person shall not be eligible for
any reduction in sentence pursuant to ORS 421.120 or for any reduction in term
of incarceration pursuant to ORS 421.121.
(2)
Felonies to which subsection (1) of this section applies include and are
limited to:
(a)
Murder, as defined in ORS 163.115, and any aggravated form thereof.
(b)
Manslaughter in the first degree, as defined in ORS 163.118.
(c)
Assault in the first degree, as defined in ORS 163.185.
(d)
Kidnapping in the first degree, as defined in ORS 163.235.
(e)
Rape in the first degree, as defined in ORS 163.375.
(f)
Sodomy in the first degree, as defined in ORS 163.405.
(g)
Unlawful sexual penetration in the first degree, as defined in ORS 163.411.
(h)
Burglary in the first degree, as defined in ORS 164.225.
(i)
Arson in the first degree, as defined in ORS 164.325.
(j)
Robbery in the first degree, as defined in ORS 164.415.
(3)
When the court imposes a sentence under this section, the court shall indicate
in the judgment that the defendant is subject to this section. [1989 c.1 §§2,3;
1991 c.386 §6; 1993 c.692 §5; 1995 c.79 §49; 2003 c.14 §59]
137.637 Determining length of determinate
sentences. When a determinate sentence of
imprisonment is required or authorized by statute, the sentence imposed shall
be the determinate sentence or the sentence as provided by the rules of the
Oregon Criminal Justice Commission, whichever is longer. [1989 c.790 §82; 1995
c.520 §2]
Note:
137.637 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.640
[Repealed by 1961 c.359 §1]
137.650
[Repealed by 1961 c.359 §1]
OREGON CRIMINAL JUSTICE COMMISSION
137.651 Definitions.
As used in ORS 137.654, 137.656 and 137.658:
(1)
“Commission” means the Oregon Criminal Justice Commission.
(2)
“Criminal justice system” includes all activities and agencies, whether state
or local, public or private, pertaining to the prevention, prosecution and
defense of offenses, the disposition of offenders under the criminal law and
the disposition or treatment of juveniles adjudicated to have committed an act
which, if committed by an adult, would be a crime. The “criminal justice system”
includes police, public prosecutors, defense counsel, courts, correction
systems, mental health agencies, crime victims and all public and private
agencies providing services in connection with those elements, whether
voluntarily, contractually or by order of a court. [1985 c.558 §1; 1995 c.420 §4;
1997 c.433 §1]
Note:
137.651 to 137.673 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 137 by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
137.653 [1985
c.558 §2; 1987 c.879 §18; 1989 c.548 §1; 1993 c.188 §2; repealed by 1995 c.420 §14]
137.654 Oregon Criminal Justice
Commission; membership; terms; meetings. (1) There is
established the Oregon Criminal Justice Commission consisting of nine members.
The Governor shall appoint seven members who are subject to confirmation by the
Senate pursuant to section 4, Article III of the Oregon Constitution. The
President of the Senate shall appoint one state Senator as a nonvoting member.
The Speaker of the House of Representatives shall appoint one state Representative
as a nonvoting member. Members serve at the pleasure of the appointing
authority. The Governor shall appoint members of the commission consistent with
the following:
(a)
Members shall be appointed with consideration of the different geographic regions
of the state.
(b)
Not more than four members may belong to the same political party. Party
affiliation is determined by the appropriate entry on official election
registration cards.
(2)(a)
The term of office of each member is four years or until the end of a
legislative member’s legislative term, whichever occurs first. Before the
expiration of the term of a member, the appointing authority shall appoint a
successor whose term begins immediately upon the expiration of the term of the
current member. A member is eligible for reappointment but may serve no more
than two consecutive terms.
(b)
In case of a vacancy for any cause, the appointing authority shall appoint a
person to fill the office for the unexpired term. When a person is appointed
under this paragraph, the unexpired term may not be considered for purposes of
the limitation to two consecutive terms of service.
(3)
The Governor shall appoint one of the commissioners as chairperson, to serve at
the pleasure of the Governor. The members of the commission shall elect from
among themselves a vice chairperson who shall preside over meetings and
exercise the functions of the chairperson during absence or disability of the
chairperson. The chairperson and vice chairperson shall execute the duties determined
by the commission to be necessary.
(4)
The chairperson shall appoint one member, subject to the approval of the
commission, to serve on an executive committee with the chairperson and vice
chairperson. The executive committee may exercise the powers and
responsibilities of the commission between meetings of the commission. All
action taken by the executive committee not previously authorized must be
submitted to the commission for approval at the next regular or special
meeting.
(5)
A majority of the voting members of the commission constitutes a quorum for the
transaction of business.
(6)
The commission shall meet at least once a month, at a time and place determined
by the commission. The commission shall also meet at such other times and places
as are specified by the call of the chairperson. If a majority of members, in
writing, request a special meeting, the chairperson shall designate a time for
a special meeting as requested.
(7)
The Governor shall appoint an executive director for the commission who shall
be in the exempt service and who shall be responsible for the performance of
duties assigned by the commission. Subject to the State Personnel Relations
Law, the executive director may employ appropriate staff to carry out the
duties assigned by the commission.
(8)
Members of the commission are entitled to expenses as provided in ORS 292.495.
Subject to the availability of funds, members of a committee established under
ORS 137.658 who are not commission members may be reimbursed for actual and
necessary travel and other expenses incurred by them in the performance of
their official duties, subject to ORS 292.495 (2). Any legislative members are
entitled to payment of compensation and expense reimbursement under ORS
171.072, payable from funds appropriated to the Legislative Assembly.
(9)
The commission is subject to the provisions of ORS 291.201 to 291.222 and
291.232 to 291.260.
(10)
The commission shall consult with and seek advice and counsel of the Chief
Justice of the Supreme Court and the State Court Administrator on any matter
that impacts the operation of the courts. The Chief Justice may have a
representative participate in any meeting of the commission. [1995 c.420 §1;
1999 c.172 §1; 2001 c.919 §4]
Note: See
note under 137.651.
137.655 [1985
c.558 §3; subsections (8) and (9) enacted as 1991 c.885 §6; 1993 c.188 §1;
repealed by 1995 c.420 §14]
137.656 Purpose and duties of commission;
rules. (1) The purpose of the Oregon Criminal
Justice Commission is to improve the effectiveness and efficiency of state and
local criminal justice systems by providing a centralized and impartial forum
for statewide policy development and planning.
(2)
The primary duty of the commission is to develop and maintain a state criminal
justice policy and comprehensive, long-range plan for a coordinated state
criminal justice system that encompasses public safety, offender
accountability, crime reduction and prevention and offender treatment and
rehabilitation. The plan must include, but need not be limited to,
recommendations regarding:
(a)
Capacity, utilization and type of state and local prison and jail facilities;
(b)
Implementation of community corrections programs;
(c)
Alternatives to the use of prison and jail facilities;
(d)
Appropriate use of existing facilities and programs;
(e)
Whether additional or different facilities and programs are necessary;
(f)
Methods of assessing the effectiveness of juvenile and adult correctional
programs, devices and sanctions in reducing future criminal conduct by juvenile
and adult offenders;
(g)
Methods of reducing the risk of future criminal conduct; and
(h)
The effective utilization of local public safety coordinating councils.
(3)
Other duties of the commission are:
(a)
To conduct joint studies by agreement with other state agencies, boards or
commissions on any matter within the jurisdiction of the commission.
(b)
To provide Oregon criminal justice analytical and statistical information to
federal agencies and serve as a clearinghouse and information center for the
collection, preparation, analysis and dissemination of information on state and
local sentencing practices.
(c)
To provide technical assistance and support to local public safety coordinating
councils.
(d)
To receive grant applications to start or expand drug court programs as defined
in ORS 3.450, to make rules to govern the grant process and to award grant
funds according to the rules.
(4)
The commission shall establish by rule the information that must be submitted
under ORS 137.010 (9) and the methods for submitting the information. A rule
adopted under this subsection must be approved by the Chief Justice of the
Supreme Court before it takes effect.
(5)
The commission may:
(a)
Apply for and receive gifts and grants from any public or private source.
(b)
Award grants from funds appropriated by the Legislative Assembly to the
commission or from funds otherwise available from any other source, for the
purpose of carrying out the duties of the commission.
(c)
Adopt rules to carry out the provisions of this subsection. [1995 c.420 §3;
1997 c.433 §2; 1999 c.1053 §44; 2005 c.10 §3; 2005 c.503 §11; 2005 c.706 §24;
2007 c.71 §36; 2007 c.682 §3; 2009 c.308 §1]
Note: See
note under 137.651.
137.657 [1989
c.790 §91; repealed by 1995 c.420 §14]
137.658 Authority of chairperson to create
committees within commission. (1) The
chairperson of the Oregon Criminal Justice Commission may create any committees
within the commission as the chairperson may think necessary. Persons who are
not commission members may be appointed as members to serve on the committees
with the approval of the commission.
(2)
The chairperson shall appoint members of committees created under this section
in such a manner as to ensure representation from all segments of the criminal
justice system that are affected by the work of the committee. In selecting
members for committee assignments, the chairperson shall consider, but is not
limited to, representatives from the following:
(a)
The Attorney General;
(b)
The Director of the Department of Corrections;
(c)
The chairperson of the State Board of Parole and Post-Prison Supervision;
(d)
The Superintendent of State Police;
(e)
The chief administrative employee of the Psychiatric Security Review Board;
(f)
The Director of Human Services;
(g)
The Director of the Oregon Health Authority;
(h)
The Director of the Oregon Youth Authority;
(i)
Trial judges;
(j)
Judges of the Oregon Supreme Court or Court of Appeals;
(k)
Majority and minority parties of the House of Representatives and the Senate;
(L)
District attorneys;
(m)
Criminal defense attorneys;
(n)
County sheriffs;
(o)
County commissioners;
(p)
County community corrections directors;
(q)
Chiefs of police;
(r)
Victims of crime;
(s)
The public at large;
(t)
The director of a nonprofit entity created for the purpose of increasing
understanding of the adult and juvenile justice systems and promotion of
effective policies for prevention and control of crime; and
(u)
Private contract providers. [1995 c.420 §2; 1997 c.433 §3; 2001 c.900 §23; 2009
c.595 §98]
Note: See
note under 137.651.
137.659 [1987
c.619 §9; 1991 c.455 §1; repealed by 1995 c.420 §14]
137.660
[Repealed by 1961 c.359 §1]
137.661 Agency cooperation with
commission. All officers, boards, commissions and
other agencies of the State of Oregon shall cooperate with the Oregon Criminal
Justice Commission to accomplish the duties imposed upon the Oregon Criminal
Justice Commission. [1985 c.558 §6; 1995 c.420 §5]
Note: See
note under 137.651.
137.662 Oregon Criminal Justice Commission
Account. The Oregon Criminal Justice Commission
Account is established separate and distinct from the General Fund. All moneys
received by the Oregon Criminal Justice Commission, other than appropriations
from the General Fund, and except those moneys described in ORS 131A.460, shall
be deposited into the account and are continuously appropriated to the
commission to carry out the duties, functions and powers of the commission. [2001
c.716 §1; 2009 c.78 §56]
Note: See
note under 137.651.
137.663 [1987
c.619 §3; 1989 c.790 §38; 1993 c.188 §3; repealed by 1995 c.420 §14]
137.665 [1989
c.790 §89; 1993 c.692 §6; repealed by 1995 c.420 §14]
137.667 Amendments to sentencing
guidelines; submitting to Legislative Assembly; rules.
(1) The Oregon Criminal Justice Commission shall review all new legislation
that creates new crimes or modifies existing crimes. The commission shall adopt
by rule any necessary modifications to the crime seriousness scale of the
guidelines to reflect the actions of the Legislative Assembly and may classify
offenses as person felonies or person misdemeanors for purposes of the rules.
(2)
The commission may adopt by majority vote of all of its members who are
eligible to vote amendments to the sentencing guidelines approved by section
87, chapter 790, Oregon Laws 1989. The commission shall submit the amendments
to the Legislative Assembly for its approval. The amendments do not become
effective unless approved by the Legislative Assembly by law. The effective
date of the amendments is the date specified by the Legislative Assembly in the
law approving the amendments or, if the Legislative Assembly does not specify a
date, the effective date of the law approving the amendments. The Legislative Assembly
may by law amend, repeal or supplement any of the amendments.
(3)
The provisions of subsection (2) of this section do not apply to amendments to
the guidelines adopted by the commission that:
(a)
Are required to implement enactments of the Legislative Assembly;
(b)
Are required under ORS 421.512 (2) or subsection (1) of this section; or
(c)(A)
Renumber rules or parts of rules, change internal references to agree with
statute or rule numbers, delete references to repealed statutes or rules,
substitute statute references for chapter numbers, change capitalization and
spelling for the purpose of uniformity or correct manifest clerical,
grammatical or typographical errors; and
(B)
Do not alter the sense, meaning, effect or substance of the rule amended.
(4)
If a rule adopted under subsection (1) of this section is not approved by the
next regular Legislative Assembly following the adoption of the rule, the rule
is repealed on January 1 following adjournment sine die of that Legislative
Assembly. [1989 c.790 §94a; 1993 c.681 §6; 1993 c.692 §7; 1995 c.420 §6; 1997
c.691 §3; 1999 c.966 §2; 2003 c.453 §4]
Note: See
note under 137.651.
137.669 Guidelines control sentences;
mandatory sentences. The guidelines adopted under ORS
137.667, together with any amendments, supplements or repealing provisions,
shall control the sentences for all crimes committed after the effective date
of such guidelines. Except as provided in ORS 137.637 and 137.671, the
incarcerative guidelines and any other guidelines so designated by the Oregon
Criminal Justice Commission shall be mandatory and constitute presumptive
sentences. [1987 c.619 §5; 1989 c.790 §95; 1995 c.420 §7; 1997 c.691 §4]
Note: See
note under 137.651.
137.670
[Repealed by 1961 c.359 §1]
137.671 Authority of court to impose
sentence outside guidelines. (1) The court
may impose a sentence outside the presumptive sentence or sentence range made
presumptive under ORS 137.669 for a specific offense if it finds there are
substantial and compelling reasons justifying a deviation from the presumptive
sentence.
(2)
Whenever the court imposes a sentence outside the presumptive sentence it shall
set forth the reasons for its decision in the manner required by rules of the
Oregon Criminal Justice Commission. [1987 c.619 §6; 1989 c.790 §39; 1995 c.420 §8]
Note: See
note under 137.651.
137.673 Validity of rules.
Rules adopted by the Oregon Criminal Justice Commission shall not be declared
invalid solely because of irregularities in procedural rulemaking, including but
not limited to the provisions of ORS 183.335 or 183.400 (4)(c). [1989 c.790 §73;
1995 c.420 §9; 2001 c.220 §2; 2005 c.382 §3]
Note: See
note under 137.651.
137.675 [1993
c.680 §14; repealed by 1995 c.420 §14]
137.677 [1993
c.680 §15; repealed by 1995 c.420 §14]
PRESUMPTIVE SENTENCES, MANDATORY MINIMUM
SENTENCES AND ADULT PROSECUTION OF 15-, 16- AND 17-YEAR-OLD OFFENDERS
137.689 Oregon Crimefighting Act.
This section and ORS 137.690 and 813.011 shall be known as the Oregon
Crimefighting Act. [2011 c.1 §1]
Note:
137.689 was enacted into law but was not added to or made a part of ORS chapter
137 or any series therein by law. See Preface to Oregon Revised Statutes for
further explanation.
137.690 Major felony sex crime.
a. Any person who is convicted of a major felony sex crime, who has one (or
more) previous conviction of a major felony sex crime, shall be imprisoned for
a mandatory minimum term of 25 years.
b.
“Major felony sex crime” means rape in the first degree (ORS 163.375), sodomy
in the first degree (ORS 163.405), unlawful sexual penetration in the first
degree (ORS 163.411), or using a child in a display of sexually explicit
conduct (ORS 163.670).
c.
“Previous conviction” includes a conviction for the statutory counterpart of a
major felony sex crime in any jurisdiction, and includes a conviction in the
same sentencing proceeding if the conviction is for a separate criminal episode
as defined in ORS 131.505. [2011 c.1 §2]
Note:
137.690 was enacted into law but was not added to or made a part of ORS chapter
137 or any series therein by law. See Preface to Oregon Revised Statutes for
further explanation.
137.700 Offenses requiring imposition of
mandatory minimum sentences. (1)
Notwithstanding ORS 161.605, when a person is convicted of one of the offenses
listed in subsection (2)(a) of this section and the offense was committed on or
after April 1, 1995, or of one of the offenses listed in subsection (2)(b) of
this section and the offense was committed on or after October 4, 1997, or of the
offense described in subsection (2)(c) of this section and the offense was
committed on or after January 1, 2008, the court shall impose, and the person
shall serve, at least the entire term of imprisonment listed in subsection (2)
of this section. The person is not, during the service of the term of
imprisonment, eligible for release on post-prison supervision or any form of
temporary leave from custody. The person is not eligible for any reduction in,
or based on, the minimum sentence for any reason whatsoever under ORS 421.121
or any other statute. The court may impose a greater sentence if otherwise
permitted by law, but may not impose a lower sentence than the sentence
specified in subsection (2) of this section.
(2)
The offenses to which subsection (1) of this section applies and the applicable
mandatory minimum sentences are:
______________________________________________________________________________
(a)(A) Murder, as defined in
ORS
163.115. 300
months
(B) Attempt
or conspiracy
to
commit aggravated
murder,
as defined
in
ORS 163.095. 120
months
(C) Attempt
or conspiracy
to
commit murder, as
defined
in ORS 163.115. 90 months
(D) Manslaughter
in the
first
degree, as defined
in
ORS 163.118. 120
months
(E) Manslaughter
in the
second
degree, as defined
in
ORS 163.125. 75 months
(F) Assault
in the first
degree,
as defined in
ORS
163.185. 90 months
(G) Assault
in the second
degree,
as defined in
ORS
163.175. 70 months
(H) Except
as provided in
paragraph
(b)(G) of
this
subsection,
kidnapping
in the first
degree,
as defined
in
ORS 163.235. 90 months
(I) Kidnapping
in the second
degree,
as defined in
ORS
163.225. 70 months
(J) Rape
in the first degree,
as
defined in ORS 163.375
(1)(a),
(c) or (d). 100 months
(K) Rape
in the second degree,
as
defined in ORS 163.365. 75 months
(L) Sodomy
in the first degree,
as
defined in ORS 163.405
(1)(a),
(c) or (d). 100
months
(M) Sodomy
in the second
degree,
as defined in
ORS
163.395. 75 months
(N) Unlawful
sexual penetration
in
the first degree, as
defined
in ORS 163.411
(1)(a)
or (c). 100
months
(O) Unlawful
sexual penetration
in
the second degree, as
defined
in ORS 163.408. 75 months
(P) Sexual
abuse in the first
degree,
as defined in
ORS
163.427. 75 months
(Q) Robbery
in the first degree,
as
defined in ORS 164.415. 90 months
(R) Robbery
in the second
degree,
as defined in
ORS
164.405. 70 months
(b)(A) Arson in
the first degree,
as
defined in ORS 164.325,
when
the offense represented
a
threat of serious
physical
injury. 90 months
(B) Using
a child in a display
of
sexually explicit
conduct,
as defined in
ORS
163.670. 70 months
(C) Compelling
prostitution,
as
defined in ORS 167.017. 70 months
(D) Rape
in the first degree,
as
defined in
ORS
163.375 (1)(b). 300 months
(E) Sodomy
in the first degree,
as
defined in
ORS
163.405 (1)(b). 300 months
(F) Unlawful
sexual penetration
in
the first degree, as
defined
in
ORS
163.411 (1)(b). 300 months
(G) Kidnapping
in the first
degree,
as defined in
ORS
163.235, when the
offense
is committed in
furtherance
of the commission
or
attempted commission of an
offense
listed in subparagraph
(D),
(E) or (F) of
this
paragraph. 300
months
(c) Aggravated
vehicular
homicide,
as defined in
ORS
163.149. 240
months
______________________________________________________________________________
[1995
c.2 §1; 1995 c.421 §1; 1995 c.422 §47; 1997 c.852 §2; 2006 c.1 §1; 2007 c.867 §5]
Note:
Section 3 (2), chapter 1, Oregon Laws 2006, provides:
Sec.
3. (2) The amendments to ORS 137.700 by
section 1 of this 2006 Act apply only to a person who was at least 18 years of
age at the time the person committed an offense described in ORS 137.700
(2)(b)(D), (E), (F) or (G). [2006 c.1 §3(2)]
Note:
137.700 to 137.707 were enacted into law but were not added to or made a part
of ORS chapter 137 or any series therein by law. See Preface to Oregon Revised
Statutes for further explanation.
137.705
Definitions for ORS 137.705 and 137.707. (1)(a) As
used in this section and ORS 137.707:
(A) “Charged” means the filing of an
accusatory instrument in a court of criminal jurisdiction alleging the
commission of an offense listed in ORS 137.707.
(B) “Detention facility” has the meaning
given that term in ORS 419A.004.
(C) “Prosecuted” includes pretrial and
trial procedures, requirements and limitations provided for in criminal cases.
(b) Unless otherwise provided in ORS
137.707, ORS chapters 137 and 138 apply to proceedings under ORS 137.707.
(2)(a) Notwithstanding ORS 419B.100 and
419C.005, a person 15, 16 or 17 years of age at the time of committing the
offense may be charged with the commission of an offense listed in ORS 137.707
and may be prosecuted as an adult.
(b) The district attorney shall notify the
juvenile court and the juvenile department when a person under 18 years of age
is charged with an offense listed in ORS 137.707.
(c) The filing of an accusatory instrument
in a criminal court under ORS 137.707 divests the juvenile court of
jurisdiction in the matter if juvenile court jurisdiction is based on the
conduct alleged in the accusatory instrument or any conduct arising out of the
same act or transaction. Upon receiving notice from the district attorney under
paragraph (b) of this subsection, the juvenile court shall dismiss, without
prejudice, the juvenile court proceeding and enter any order necessary to
transfer the matter or transport the person to the criminal court for further
proceedings. Nothing in this paragraph affects the authority or jurisdiction of
the juvenile court with respect to other matters or conduct.
(3)(a) A person charged with a crime under
ORS 137.707 who is 16 or 17 years of age shall be detained in custody in a
detention facility, unless the director of the county juvenile department and
the sheriff agree to detain the person in a jail or other place where adults
are detained. A person detained in accordance with this paragraph is subject to
release on the same terms and conditions as for adults.
(b) If a person charged with a crime under
ORS 137.707 is under 16 years of age, the person may not be detained, either
before conviction or after conviction but before execution of the sentence, in
a jail or other place where adults are detained. [1995 c.422 §48; 2011 c.122 §1]
Note:
See second note under 137.700.
137.707
Adult prosecution of 15-, 16- or 17-year-old offenders; mandatory minimum
sentences; lesser included offenses; transfer to juvenile court.
(1)(a) Notwithstanding any other provision of law, when a person charged with
aggravated murder, as defined in ORS 163.095, or an offense listed in
subsection (4)(a) of this section is 15, 16 or 17 years of age at the time the
offense is committed, and the offense is committed on or after April 1, 1995,
or when a person charged with an offense listed in subsection (4)(b) of this
section is 15, 16 or 17 years of age at the time the offense is committed, and
the offense is committed on or after October 4, 1997, or when a person charged
with the offense described in subsection (4)(c) of this section is 15, 16 or 17
years of age at the time the offense is committed and the offense is committed
on or after January 1, 2008, the person shall be prosecuted as an adult in
criminal court.
(b) A district attorney, the Attorney
General or a juvenile department counselor may not file in juvenile court a
petition alleging that a person has committed an act that, if committed by an
adult, would constitute aggravated murder or an offense listed in subsection
(4) of this section if the person was 15, 16 or 17 years of age at the time the
act was committed.
(2) When a person charged under this
section is convicted of an offense listed in subsection (4) of this section,
the court shall impose at least the presumptive term of imprisonment provided
for the offense in subsection (4) of this section. The court may impose a
greater presumptive term if otherwise permitted by law, but may not impose a
lesser term. The person is not, during the service of the term of imprisonment,
eligible for release on post-prison supervision or any form of temporary leave
from custody. The person is not eligible for any reduction in, or based on, the
minimum sentence for any reason under ORS 421.121 or any other provision of
law. ORS 138.012, 163.105 and 163.150 apply to sentencing a person prosecuted
under this section and convicted of aggravated murder under ORS 163.095 except
that a person who was under 18 years of age at the time the offense was
committed is not subject to a sentence of death.
(3) The court shall commit the person to
the legal and physical custody of the Department of Corrections.
(4) The offenses to which this section
applies and the presumptive sentences are:
______________________________________________________________________________
(a)(A) Murder, as defined in
ORS
163.115. 300
months
(B) Attempt
or conspiracy
to
commit aggravated
murder,
as defined
in
ORS 163.095. 120
months
(C) Attempt
or conspiracy
to
commit murder, as
defined
in ORS 163.115. 90 months
(D) Manslaughter
in the
first
degree, as defined
in
ORS 163.118. 120
months
(E) Manslaughter
in the
second
degree, as defined
in
ORS 163.125. 75 months
(F) Assault
in the first
degree,
as defined
in
ORS 163.185. 90 months
(G) Assault
in the second
degree,
as defined
in
ORS 163.175. 70 months
(H) Kidnapping
in the first
degree,
as defined in
ORS
163.235. 90 months
(I) Kidnapping
in the second
degree,
as defined in
ORS
163.225. 70 months
(J) Rape
in the first degree,
as
defined in ORS 163.375. 100 months
(K) Rape
in the second
degree,
as defined in
ORS
163.365. 75 months
(L) Sodomy
in the first
degree,
as defined in
ORS
163.405. 100
months
(M) Sodomy
in the second
degree,
as defined in
ORS
163.395. 75 months
(N) Unlawful
sexual
penetration
in the first
degree,
as defined
in
ORS 163.411. 100
months
(O) Unlawful
sexual
penetration
in the
second
degree, as
defined
in ORS 163.408. 75 months
(P) Sexual
abuse in the first
degree,
as defined in
ORS
163.427. 75 months
(Q) Robbery
in the first
degree,
as defined in
ORS
164.415. 90 months
(R) Robbery
in the second
degree,
as defined in
ORS
164.405. 70 months
(b)(A) Arson in
the first degree,
as
defined in
ORS
164.325, when
the
offense represented
a
threat of serious
physical
injury. 90 months
(B) Using
a child in a display
of
sexually explicit
conduct,
as defined in
ORS
163.670. 70 months
(C) Compelling
prostitution,
as
defined in ORS 167.017
(1)(a),
(b) or (d). 70 months
(c) Aggravated
vehicular
homicide,
as defined in
ORS
163.149. 240 months
______________________________________________________________________________
(5) If a person charged with an offense
under this section is found guilty of a lesser included offense and the lesser
included offense is:
(a) An offense listed in subsection (4) of
this section, the court shall sentence the person as provided in subsection (2)
of this section.
(b) Not an offense listed in subsection
(4) of this section:
(A) But constitutes an offense for which
waiver is authorized under ORS 419C.349, the court, upon motion of the district
attorney, shall hold a hearing to determine whether to retain jurisdiction or
to transfer the case to juvenile court for disposition. In determining whether
to retain jurisdiction, the court shall consider the criteria for waiver in ORS
419C.349. If the court retains jurisdiction, the court shall sentence the
person as an adult under sentencing guidelines. If the court does not retain
jurisdiction, the court shall:
(i) Order that a presentence report be
prepared;
(ii) Set forth in a memorandum any
observations and recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case
to the juvenile court for disposition under ORS 419C.067 and 419C.411.
(B) And is not an offense for which waiver
is authorized under ORS 419C.349, the court may not sentence the person. The
court shall:
(i) Order that a presentence report be
prepared;
(ii) Set forth in a memorandum any
observations and recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case
to the juvenile court for disposition under ORS 419C.067 and 419C.411.
(6) When a person is charged under this
section, other offenses based on the same act or transaction shall be charged
as separate counts in the same accusatory instrument and consolidated for
trial, whether or not the other offenses are aggravated murder or offenses
listed in subsection (4) of this section. If it appears, upon motion, that the
state or the person charged is prejudiced by the joinder and consolidation of
offenses, the court may order an election or separate trials of counts or
provide whatever other relief justice requires.
(7)(a) If a person charged and tried as
provided in subsection (6) of this section is found guilty of aggravated murder
or an offense listed in subsection (4) of this section and one or more other
offenses, the court shall impose the sentence for aggravated murder or the offense
listed in subsection (4) of this section as provided in subsection (2) of this
section and shall impose sentences for the other offenses as otherwise provided
by law.
(b) If a person charged and tried as
provided in subsection (6) of this section is not found guilty of aggravated
murder or an offense listed in subsection (4) of this section, but is found
guilty of one of the other charges that constitutes an offense for which waiver
is authorized under ORS 419C.349, the court, upon motion of the district
attorney, shall hold a hearing to determine whether to retain jurisdiction or
to transfer the case to juvenile court for disposition. In determining whether
to retain jurisdiction, the court shall consider the criteria for waiver in ORS
419C.349. If the court retains jurisdiction, the court shall sentence the
person as an adult under sentencing guidelines. If the court does not retain
jurisdiction, the court shall:
(A) Order that a presentence report be
prepared;
(B) Set forth in a memorandum any observations
and recommendations that the court deems appropriate; and
(C) Enter an order transferring the case
to the juvenile court for disposition under ORS 419C.067 and 419C.411. [1995
c.422 §49; 1995 c.421 §4; 1997 c.852 §3; 1999 c.1055 §12; 2007 c.867 §6; 2011
c.334 §2]
Note:
See second note under 137.700.
137.709
Application of ORS 137.700 and 137.707. ORS 137.700
and 137.707 do not apply to a person who is under 15 years of age at the time
the person commits a crime listed in ORS 137.700 or 137.707. [2011 c.337 §1]
Note:
137.709 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.712
Exceptions to ORS 137.700 and 137.707. (1)(a)
Notwithstanding ORS 137.700 and 137.707, when a person is convicted of
manslaughter in the second degree as defined in ORS 163.125, assault in the
second degree as defined in ORS 163.175 (1)(b), kidnapping in the second degree
as defined in ORS 163.225, rape in the second degree as defined in ORS 163.365,
sodomy in the second degree as defined in ORS 163.395, unlawful sexual
penetration in the second degree as defined in ORS 163.408, sexual abuse in the
first degree as defined in ORS 163.427 (1)(a)(A) or robbery in the second
degree as defined in ORS 164.405, the court may impose a sentence according to
the rules of the Oregon Criminal Justice Commission that is less than the
minimum sentence that otherwise may be required by ORS 137.700 or 137.707 if
the court, on the record at sentencing, makes the findings set forth in
subsection (2) of this section and finds that a substantial and compelling
reason under the rules of the Oregon Criminal Justice Commission justifies the
lesser sentence. When the court imposes a sentence under this subsection, the
person is eligible for a reduction in the sentence as provided in ORS 421.121
and any other statute.
(b) In order to make a dispositional
departure under this section, the court must make the following additional
findings on the record:
(A) There exists a substantial and
compelling reason not relied upon in paragraph (a) of this subsection;
(B) A sentence of probation will be more
effective than a prison term in reducing the risk of offender recidivism; and
(C) A sentence of probation will better
serve to protect society.
(2) A conviction is subject to subsection
(1) of this section only if the sentencing court finds on the record by a
preponderance of the evidence:
(a) If the conviction is for manslaughter
in the second degree:
(A) That the victim was a dependent person
as defined in ORS 163.205 who was at least 18 years of age;
(B) That the defendant is the mother or
father of the victim;
(C) That the death of the victim was the
result of an injury or illness that was not caused by the defendant;
(D) That the defendant treated the injury
or illness solely by spiritual treatment in accordance with the religious
beliefs or practices of the defendant and based on a good faith belief that
spiritual treatment would bring about the victim’s recovery from the injury or
illness;
(E) That no other person previously under
the defendant’s care has died or sustained significant physical injury as a
result of or despite the use of spiritual treatment, regardless of whether the
spiritual treatment was used alone or in conjunction with medical care; and
(F) That the defendant does not have a
previous conviction for a crime listed in subsection (4) of this section or for
criminal mistreatment in the second degree.
(b) If the conviction is for assault in
the second degree:
(A) That the victim was not physically
injured by means of a deadly weapon;
(B) That the victim did not suffer a
significant physical injury; and
(C) That the defendant does not have a
previous conviction for a crime listed in subsection (4) of this section.
(c) If the conviction is for kidnapping in
the second degree:
(A) That the victim was at least 12 years
of age at the time the crime was committed; and
(B) That the defendant does not have a
previous conviction for a crime listed in subsection (4) of this section.
(d) If the conviction is for robbery in
the second degree:
(A) That the victim did not suffer a
significant physical injury;
(B) That, if the defendant represented by
words or conduct that the defendant was armed with a dangerous weapon, the
representation did not reasonably put the victim in fear of imminent
significant physical injury;
(C) That, if the defendant represented by
words or conduct that the defendant was armed with a deadly weapon, the
representation did not reasonably put the victim in fear of imminent physical
injury; and
(D) That the defendant does not have a
previous conviction for a crime listed in subsection (4) of this section.
(e) If the conviction is for rape in the
second degree, sodomy in the second degree or sexual abuse in the first degree:
(A) That the victim was at least 12 years
of age, but under 14 years of age, at the time of the offense;
(B) That the defendant does not have a
prior conviction for a crime listed in subsection (4) of this section;
(C) That the defendant has not been
previously found to be within the jurisdiction of a juvenile court for an act
that would have been a felony sexual offense if the act had been committed by
an adult;
(D) That the defendant was no more than
five years older than the victim at the time of the offense;
(E) That the offense did not involve
sexual contact with any minor other than the victim; and
(F) That the victim’s lack of consent was
due solely to incapacity to consent by reason of being under 18 years of age at
the time of the offense.
(f) If the conviction is for unlawful
sexual penetration in the second degree:
(A) That the victim was 12 years of age or
older at the time of the offense;
(B) That the defendant does not have a
prior conviction for a crime listed in subsection (4) of this section;
(C) That the defendant has not been
previously found to be within the jurisdiction of a juvenile court for an act that
would have been a felony sexual offense if the act had been committed by an
adult;
(D) That the defendant was no more than
five years older than the victim at the time of the offense;
(E) That the offense did not involve
sexual contact with any minor other than the victim;
(F) That the victim’s lack of consent was
due solely to incapacity to consent by reason of being under 18 years of age at
the time of the offense; and
(G) That the object used to commit the
unlawful sexual penetration was the hand or any part thereof of the defendant.
(3) In making the findings required by
subsections (1) and (2) of this section, the court may consider any evidence
presented at trial and may receive and consider any additional relevant
information offered by either party at sentencing.
(4) The crimes to which subsection
(2)(a)(F), (b)(C), (c)(B), (d)(D), (e)(B) and (f)(B) of this section refer are:
(a) A crime listed in ORS 137.700 (2) or
137.707 (4);
(b) Escape in the first degree, as defined
in ORS 162.165;
(c) Aggravated murder, as defined in ORS
163.095;
(d) Criminally negligent homicide, as
defined in ORS 163.145;
(e) Assault in the third degree, as
defined in ORS 163.165;
(f) Criminal mistreatment in the first
degree, as defined in ORS 163.205 (1)(b)(A);
(g) Rape in the third degree, as defined
in ORS 163.355;
(h) Sodomy in the third degree, as defined
in ORS 163.385;
(i) Sexual abuse in the second degree, as
defined in ORS 163.425;
(j) Stalking, as defined in ORS 163.732;
(k) Burglary in the first degree, as
defined in ORS 164.225, when it is classified as a person felony under the
rules of the Oregon Criminal Justice Commission;
(L) Arson in the first degree, as defined
in ORS 164.325;
(m) Robbery in the third degree, as
defined in ORS 164.395;
(n) Intimidation in the first degree, as
defined in ORS 166.165;
(o) Promoting prostitution, as defined in
ORS 167.012; and
(p) An attempt or solicitation to commit
any Class A or B felony listed in paragraphs (a) to (L) of this subsection.
(5) Notwithstanding ORS 137.545 (5)(b), if
a person sentenced to probation under this section violates a condition of
probation by committing a new crime, the court shall revoke the probation and
impose the presumptive sentence of imprisonment under the rules of the Oregon
Criminal Justice Commission.
(6) As used in this section:
(a) “Conviction” includes, but is not
limited to:
(A) A juvenile court adjudication finding
a person within the court’s jurisdiction under ORS 419C.005, if the person was
at least 15 years of age at the time the person committed the offense that
brought the person within the jurisdiction of the juvenile court. “Conviction”
does not include a juvenile court adjudication described in this subparagraph
if the person successfully asserted the defense set forth in ORS 419C.522.
(B) A conviction in another jurisdiction
for a crime that if committed in this state would constitute a crime listed in
subsection (4) of this section.
(b) “Previous conviction” means a
conviction that was entered prior to imposing sentence on the current crime
provided that the prior conviction is based on a crime committed in a separate
criminal episode. “Previous conviction” does not include a conviction for a
Class C felony, including an attempt or solicitation to commit a Class B
felony, or a misdemeanor, unless the conviction was entered within the 10-year
period immediately preceding the date on which the current crime was committed.
(c) “Significant physical injury” means a
physical injury that:
(A) Creates a risk of death that is not a
remote risk;
(B) Causes a serious and temporary
disfigurement;
(C) Causes a protracted disfigurement; or
(D) Causes a prolonged impairment of
health or the function of any bodily organ. [1997 c.852 §1; 1999 c.614 §3; 1999
c.954 §2; 2001 c.851 §5; 2005 c.843 §22; 2011 c.291 §3]
Note:
137.712 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 137 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
137.717
Presumptive sentences for certain property offenders.
(1) When a court sentences a person convicted of:
(a) Aggravated theft in the first degree
under ORS 164.057, burglary in the first degree under ORS 164.225, robbery in the
third degree under ORS 164.395, identity theft under ORS 165.800 or aggravated
identity theft under ORS 165.803, the presumptive sentence is 24 months of
incarceration, unless the rules of the Oregon Criminal Justice Commission
prescribe a longer presumptive sentence, if the person has:
(A) A previous conviction for aggravated
theft in the first degree under ORS 164.057, burglary in the first degree under
ORS 164.225, robbery in the third degree under ORS 164.395, robbery in the
second degree under ORS 164.405, robbery in the first degree under ORS 164.415
or aggravated identity theft under ORS 165.803;
(B) Two or more previous convictions for
any combination of the crimes listed in subsection (2) of this section; or
(C) A previous conviction for a crime
listed in subsection (2) of this section, if the current crime of conviction
was committed while the defendant was on supervision for the previous
conviction or less than three years after the date the defendant completed the
period of supervision for the previous conviction.
(b) Theft in the first degree under ORS
164.055, unauthorized use of a vehicle under ORS 164.135, mail theft or receipt
of stolen mail under ORS 164.162, burglary in the second degree under ORS
164.215, criminal mischief in the first degree under ORS 164.365, computer
crime under ORS 164.377, forgery in the first degree under ORS 165.013,
criminal possession of a forged instrument in the first degree under ORS
165.022, fraudulent use of a credit card under ORS 165.055 (4)(b), possession
of a stolen vehicle under ORS 819.300 or trafficking in stolen vehicles under
ORS 819.310, the presumptive sentence is 18 months of incarceration, unless the
rules of the Oregon Criminal Justice Commission prescribe a longer presumptive
sentence, if the person has:
(A) A previous conviction for aggravated
theft in the first degree under ORS 164.057, unauthorized use of a vehicle
under ORS 164.135, burglary in the first degree under ORS 164.225, robbery in
the third degree under ORS 164.395, robbery in the second degree under ORS
164.405, robbery in the first degree under ORS 164.415, possession of a stolen
vehicle under ORS 819.300, trafficking in stolen vehicles under ORS 819.310 or
aggravated identity theft under ORS 165.803;
(B) Two or more previous convictions for
any combination of the crimes listed in subsection (2) of this section; or
(C) A previous conviction for a crime
listed in subsection (2) of this section, if the current crime of conviction
was committed while the defendant was on supervision for the previous
conviction or less than three years after the date the defendant completed the
period of supervision for the previous conviction.
(2) The crimes to which subsection (1) of
this section applies are:
(a) Theft in the second degree under ORS
164.045;
(b) Theft in the first degree under ORS
164.055;
(c) Aggravated theft in the first degree
under ORS 164.057;
(d) Unauthorized use of a vehicle under
ORS 164.135;
(e) Mail theft or receipt of stolen mail
under ORS 164.162;
(f) Burglary in the second degree under
ORS 164.215;
(g) Burglary in the first degree under ORS
164.225;
(h) Criminal mischief in the second degree
under ORS 164.354;
(i) Criminal mischief in the first degree
under ORS 164.365;
(j) Computer crime under ORS 164.377;
(k) Forgery in the second degree under ORS
165.007;
(L) Forgery in the first degree under ORS
165.013;
(m) Criminal possession of a forged
instrument in the second degree under ORS 165.017;
(n) Criminal possession of a forged
instrument in the first degree under ORS 165.022;
(o) Fraudulent use of a credit card under
ORS 165.055;
(p) Identity theft under ORS 165.800;
(q) Possession of a stolen vehicle under
ORS 819.300;
(r) Trafficking in stolen vehicles under
ORS 819.310; and
(s) Any attempt to commit a crime listed
in this subsection.
(3)(a) A presumptive sentence described in
subsection (1) of this section shall be increased by two months for each
previous conviction the person has that:
(A) Was for any of the crimes listed in
subsection (1) or (2) of this section; and
(B) Was not used as a predicate for the
presumptive sentence described in subsection (1) of this section.
(b) Previous convictions may not increase
a presumptive sentence described in subsection (1) of this section by more than
12 months under this subsection.
(4) The court may impose a sentence other
than the sentence provided by subsection (1) or (3) of this section if the
court imposes:
(a) A longer term of incarceration that is
otherwise required or authorized by law; or
(b) A departure sentence authorized by the
rules of the Oregon Criminal Justice Commission based upon findings of
substantial and compelling reasons. Unless the law or the rules of the Oregon
Criminal Justice Commission allow for imposition of a longer sentence, the
maximum departure allowed for a person sentenced under this subsection is
double the presumptive sentence provided in subsection (1) or (3) of this
section.
(5) Notwithstanding subsection (4)(b) of
this section, the court may not sentence a person under subsection (4) of this
section to a term of incarceration that exceeds the period of time described in
ORS 161.605.
(6) The court shall sentence a person
under this section to at least the presumptive sentence described in subsection
(1) or (3) of this section, unless the parties stipulate otherwise or the court
finds that:
(a) The person was not on probation,
parole or post-prison supervision for a crime listed in subsection (1) of this
section at the time of the commission of the current crime of conviction;
(b) The person has not previously received
a downward departure from a presumptive sentence for a crime listed in
subsection (1) of this section;
(c) The harm or loss caused by the crime
is not greater than usual for that type of crime; and
(d) In consideration of the nature of the
offense and the harm to the victim, a downward departure will:
(A) Increase public safety;
(B) Enhance the likelihood that the person
will be rehabilitated; and
(C) Not unduly reduce the appropriate
punishment.
(7)(a) For a crime committed on or after
November 1, 1989, a conviction is considered to have occurred upon the
pronouncement of sentence in open court. However, when sentences are imposed
for two or more convictions arising out of the same conduct or criminal
episode, none of the convictions is considered to have occurred prior to any of
the other convictions arising out of the same conduct or criminal episode.
(b) For a crime committed prior to
November 1, 1989, a conviction is considered to have occurred upon the
pronouncement in open court of a sentence or upon the pronouncement in open
court of the suspended imposition of a sentence.
(8) For purposes of this section, previous
convictions must be proven pursuant to ORS 137.079.
(9) As used in this section:
(a) “Downward departure” means a downward
dispositional departure or a downward durational departure under the rules of
the Oregon Criminal Justice Commission.
(b) “Previous conviction” includes:
(A) Convictions occurring before, on or
after July 1, 2003; and
(B) Convictions entered in any other state
or federal court for comparable offenses. [1996 c.3 §1; 1999 c.1022 §§2,4,7;
2001 c.784 §1; 2007 c.584 §2; 2008 c.14 §7; 2009 c.660 §§8,11]
Note
1: The amendments to ORS 137.717 by
section 11, chapter 660, Oregon Laws 2009, became operative January 1, 2012,
and apply to sentences imposed for crimes committed on or after January 1,
2012. See section 48 (4) [renumbered to (3) by amendment in 2011], chapter 660,
Oregon Laws 2009, as amended by section 5, chapter 2, Oregon Laws 2010, and
section 3, chapter 596, Oregon Laws 2011. See also section 49 (5), chapter 660,
Oregon Laws 2009, as amended by section 6, chapter 2, Oregon Laws 2010, section
2, chapter 498, Oregon Laws 2011, and section 4, chapter 596, Oregon Laws 2011.
Note
2: The amendments to ORS 137.717 by
section 8, chapter 660, Oregon Laws 2009, were operative from February 15,
2010, until January 1, 2012, and apply to sentences imposed on or after
February 15, 2010, for crimes committed on or after January 1, 2009, and before
January 1, 2012. See section 48 (3) [renumbered to (2) by amendment in 2011],
chapter 660, Oregon Laws 2009, as amended by section 5, chapter 2, Oregon Laws
2010, and section 3, chapter 596, Oregon Laws 2011. See also section 49 (4),
chapter 660, Oregon Laws 2009, as amended by section 6, chapter 2, Oregon Laws
2010, section 2, chapter 498, Oregon Laws 2011, and section 4, chapter 596,
Oregon Laws 2011. The text that was operative until January 1, 2012, is set
forth for the user’s convenience.
137.717.
(1) When a court sentences a person convicted of:
(a) Aggravated theft in the first degree
under ORS 164.057, burglary in the first degree under ORS 164.225 or aggravated
identity theft under ORS 165.803, the presumptive sentence is 19 months of
incarceration, unless the rules of the Oregon Criminal Justice Commission
prescribe a longer presumptive sentence, if the person has:
(A) A previous conviction for aggravated
theft in the first degree under ORS 164.057, burglary in the first degree under
ORS 164.225, robbery in the second degree under ORS 164.405, robbery in the
first degree under ORS 164.415 or aggravated identity theft under ORS 165.803;
or
(B) Four or more previous convictions for
any combination of the crimes listed in subsection (2) of this section.
(b) Theft in the first degree under ORS
164.055, unauthorized use of a vehicle under ORS 164.135, burglary in the
second degree under ORS 164.215, criminal mischief in the first degree under
ORS 164.365, computer crime under ORS 164.377, forgery in the first degree
under ORS 165.013, identity theft under ORS 165.800, possession of a stolen
vehicle under ORS 819.300 or trafficking in stolen vehicles under ORS 819.310,
the presumptive sentence is 13 months of incarceration, unless the rules of the
Oregon Criminal Justice Commission prescribe a longer presumptive sentence, if
the person has:
(A) A previous conviction for aggravated
theft in the first degree under ORS 164.057, unauthorized use of a vehicle
under ORS 164.135, burglary in the first degree under ORS 164.225, robbery in
the second degree under ORS 164.405, robbery in the first degree under ORS
164.415, possession of a stolen vehicle under ORS 819.300, trafficking in
stolen vehicles under ORS 819.310 or aggravated identity theft under ORS
165.803; or
(B) Four or more previous convictions for
any combination of the crimes listed in subsection (2) of this section.
(2) The crimes to which subsection (1) of
this section applies are:
(a) Theft in the second degree under ORS
164.045;
(b) Theft in the first degree under ORS
164.055;
(c) Aggravated theft in the first degree
under ORS 164.057;
(d) Unauthorized use of a vehicle under
ORS 164.135;
(e) Burglary in the second degree under
ORS 164.215;
(f) Burglary in the first degree under ORS
164.225;
(g) Criminal mischief in the second degree
under ORS 164.354;
(h) Criminal mischief in the first degree
under ORS 164.365;
(i) Computer crime under ORS 164.377;
(j) Forgery in the second degree under ORS
165.007;
(k) Forgery in the first degree under ORS
165.013;
(L) Criminal possession of a forged
instrument in the second degree under ORS 165.017;