US Laws, Codes, Statutes & Cases

Chapter 137 — Judgment and Execution; Parole and Probation by the Court

 

2005 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 forfeited 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; amount; calculation

 

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 imprisonment; restoration of rights

 

137.285     Retained rights of felon; regulation of exercise

 

(Unitary Assessment)

 

137.290     Unitary assessment; amount; waiver

 

137.293     All monetary obligations constitute single obligation on part of convicted person

 

137.295     Categories of monetary obligations; order of crediting moneys received

 

137.300     Criminal Fine and Assessment Account; rules

 

137.301     Legislative findings

 

137.302     Criminal Fine and Assessment Public Safety Fund; rules

 

(County Assessment)

 

137.308     Authorized uses of assessments

 

137.309     County assessment; amount; collection; distribution

 

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; 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

 

137.669     Guidelines control sentences; mandatory sentences

 

137.671     Authority of court to impose sentence outside guidelines

 

137.673     Validity of rules

 

MANDATORY MINIMUM SENTENCES AND ADULT PROSECUTION OF 15-, 16- AND 17-YEAR-OLD OFFENDERS

 

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

 

137.712     Exceptions to ORS 137.700 and 137.707

 

137.717     Additional offenses requiring imposition of presumptive sentences

 

137.719     Presumptive sentence for certain sex offenders

 

137.721     Presumptive sentences for certain methamphetamine offenses

 

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

 

137.752     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

 

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 forfeited security deposits received by court. Except as otherwise specifically provided by law, all fines, costs and forfeited security deposits ordered paid in criminal actions and proceedings, as defined in ORS 131.005, in the circuit court shall be accounted for and distributed as provided in ORS 137.293 and 137.295, as monetary obligations payable to the state. [1981 s.s. c.3 §102; 1983 c.763 §42; 1987 c.905 §5; 1999 c.1051 §253]

 

      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” has the meaning given that term in ORS 31.710, except that “economic damages” does not include future impairment of earning capacity.

      (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]

 

      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:

      (a) Include in the judgment 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; or

      (b) Include in the judgment 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.

      (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) 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.

      (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]

 

      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 Nove