Chapter 614 Oregon Laws 1999

Session Law

AN ACT

SB 18

Relating to probation; creating new provisions; and amending ORS 137.550 and 137.712.

Be It Enacted by the People of the State of Oregon:

SECTION 1. (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 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 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.

SECTION 2. ORS 137.550 is amended to read:

137.550. (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 such 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 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 probation officer setting forth that the probationer has, in the judgment of the probation 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 probation officer or supervisory personnel impose and the offender agrees to structured, intermediate sanctions in accordance with the rules adopted under ORS 137.595. Such 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 probation officer or supervisory personnel in accordance with the rules adopted under ORS 137.595, the probation officer, as soon as practicable, but within one judicial day, shall report such arrest or detention to the court that imposed the probation. The 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 section 1 of this 1999 Act:

(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.

[(4)(a)] (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.

[(5)] (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.

[(6)] (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.

[(7)] (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.

[(8)] (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.

[(9)(a)] (10)(a) If requested by the probationer and agreed to by the court, the probationer may admit or deny the violation without being physically present at the hearing if the probationer appears before the court by means of simultaneous television transmission allowing the court to observe and communicate with the defendant and the defendant to observe and communicate with the court.

(b) Notwithstanding paragraph (a) of this subsection, appearance by simultaneous television transmission shall not be permitted unless the facilities used enable the defendant to consult privately with defense counsel during the proceedings.

[(10)(a)] (11)(a) The victim has the right:

(A) Upon request made within the time period prescribed in the notice required by ORS 147.417, to be notified by the district attorney of any hearing before the court that may result in the revocation of the defendant's probation;

(B) To appear personally at the hearing; and

(b) Failure of the district attorney to notify the victim under paragraph (a) of this subsection or failure of the victim to appear at the hearing does not affect the validity of the proceeding.

SECTION 3. ORS 137.712 is amended to read:

137.712. (1)(a) Notwithstanding ORS 137.700 and 137.707, when a person is convicted of assault in the second degree as defined in ORS 163.175 (1)(b), kidnapping in the second degree as defined in ORS 163.225 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

(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 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

(b) 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.

(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.

(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)(C), (b)(B) and (c)(D) 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;

(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 137.550 [(4)(b)] (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.

(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.

(A) Creates a risk of death that is not a remote risk;

(B) Causes a serious and temporary disfigurement;

(D) Causes a prolonged impairment of health or the function of any bodily organ.

Approved by the Governor July 12, 1999

Filed in the office of Secretary of State July 12, 1999

Effective date October 23, 1999

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