Judgment and Execution

ORS 137.545
Period of probation

  • discharge from probation
  • proceedings in case of violation of conditions


(1)

Subject to the limitations in ORS 137.010 (Duty of court to ascertain and impose punishment) 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 (Establishing system of sanctions). 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 (Establishing system of sanctions), 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 (Consolidation of probation violation proceedings):

(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 (Conditions of probation) 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 (Appearances by simultaneous electronic transmission).

(11)

The victim has the right:

(a)

Upon request made within the time period prescribed in the notice required by ORS 147.417 (Victim to be notified of constitutional rights), 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 (“Supervisory authority” defined). [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 §§1,5]

(formerly 137.550)

Notes of Decisions

It is not necessary to revocation that the person on probation be convicted of a new crime but only that the trial judge be satisfied that the purposes of probation are not being served or that the terms thereof have been violated. State v. Green, 6 Or App 487, 488 P2d 1196 (1971); State v. Golden, 8 Or App 215, 493 P2d 57 (1972)

Since the grant, denial or revocation of probation is discretionary with the trial court, the question is whether the trial court acted arbitrarily or capriciously. State v. Green, 6 Or App 487, 488 P2d 1196 (1971); State v. Golden, 8 Or App 215, 493 P2d 57 (1972)

Defendant whose sentence was suspended could not challenge execution of sentence with a claim that the state waited an unreasonable length of time to move for execution, when reason for delay was defendant's self-concealment. State v. Taylor, 16 Or App 269, 517 P2d 1233 (1974)

Defendant's probation may be revoked even though he is acquitted of the charge which forms the basis of his probation revocation. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

Since there is a full record of evidence and proceedings on which the court based its decision to revoke probation, the court need not give defendant a written statement of evidence upon which its decision was based. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

Proof by a preponderance of the evidence is sufficient in probation revocation proceedings. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

A court in sentencing may not increase the original sentence, even in light of new facts or changing circumstances. State v. Stewart, 21 Or App 555, 535 P2d 1389 (1975)

A court is without authority to revoke probation for a crime committed during the probationary period when revocation proceedings have not been initiated before the probationary period has expired. State v. O'Neal, 24 Or App 423, 545 P2d 910 (1976)

If revocation proceedings are properly initiated within the probationary period, a court may retain jurisdiction to revoke probation after the period has expired. State v. O'Neal, 24 Or App 423, 545 P2d 910 (1976)

The trial court had authority, after revoking probation, to impose a sentence to run consecutive to a sentence imposed during probation for a crime committed during probation. State v. Monahan, 29 Or App 791, 564 P2d 1374 (1977); State v. McBride, 103 Or App 642, 798 P2d 728 (1990)

Under this section, probation violator sentenced to penitentiary was entitled to credit on penitentiary sentence for good time credits (ORS 169.110) and work time credits (ORS 169.120) earned while confined in county jail. Brown v. Cupp, 31 Or App 1237, 572 P2d 1065 (1977)

Apparent legislative purpose of this section is to harmonize state with county good time statutes. Brown v. Cupp, 31 Or App 1237, 572 P2d 1065 (1977)

District court judge who, without having received sworn complaint, issued arrest warrant for violation of conditions of probation was not acting outside jurisdiction and was immune from liability for false arrest. Higgins v. Redding, 34 Or App 1029, 580 P2d 580 (1978), Sup Ct review denied

Order revoking probation and reinstating it under same conditions was appealable probation revocation rather than modification. State v. Hovator, 37 Or App 557, 588 P2d 56 (1978)

Requirement for presentence report does not apply to revocation proceeding where court causes sentence previously imposed to be executed. State v. Gustafson, 38 Or App 437, 590 P2d 733 (1979)

Under this statute, it is not necessary that formal motion to quash evidence be made in order to raise improper search and seizure if, before the court rules on the revocation, defendant makes it known to court that evidence justifying revocation was illegally seized. State v. Nettles, 287 Or 131, 597 P2d 1243 (1979). Distinguished in State ex rel Juv. Dept. v. Rogers, 314 Or 114, 836 P2d 127 (1992)

Where defendant was twice tried and convicted for same offense and had had his probation revoked, he could be given longer sentence than that imposed following first conviction. State v. Holmes, 287 Or 613, 601 P2d 1213 (1979)

Failure to make support payments, to reimburse court for costs of court-appointed attorney and to apprise court in writing of address and employment were sufficient grounds for revoking probation of defendant convicted of second decree criminal mistreatment. State v. Reed, 45 Or App 185, 608 P2d 175 (1980)

Under this section, where court revoked probation and ordered execution of sentence previously imposed, it was without power to modify that sentence to make it run consecutively to later imposed sentence. Fergelic v. Cupp, 53 Or App 190, 631 P2d 800 (1981), Sup Ct review denied

Where defendant was convicted of guiding without license, placed on probation and, while appeal was pending, probation was revoked, though Court of Appeals had jurisdiction of case on appeal, trial court retained authority to enforce judgment and revoke probation any time during probation period. State v. Link, 87 Or App 556, 743 P2d 737 (1987)

Once court has imposed sentence and placed defendant on probation it may revoke probation but does not have authority under this section to amend sentence and, accordingly, trial court could not revoke probation and impose new sentence to run consecutively to sentence for subsequent crime. State v. Haines, 90 Or App 347, 752 P2d 333 (1988)

Where court found that defendant's probation needed to be modified and original probation would expire before defendant could benefit from modification, trial court did not abuse its discretion in extending period of probation. State v. Stanford, 100 Or App 303, 786 P2d 225 (1990)

Where defendant pleaded guilty, argument that trial court lacked authority to revoke its order suspending imposition of sentence or to impose any sentence failed to raise issue within scope of appellate review. State v. Blaney, 101 Or App 273, 790 P2d 549 (1990)

Authority to order probation is conditioned on suspension or execution of sentence and failure to meet condition renders original probation order void. State v. Reimers, 102 Or App 192, 793 P2d 1382 (1990), Sup Ct review denied

Sentence, once imposed, cannot be retroactively altered to run consecutively to later sentence; former and later sentences must run concurrently. State v. McBride, 103 Or App 642, 798 P2d 728 (1990)

Bench warrant meeting requirements of ORS 137.060 is sufficient for purposes of this section. State v. Vaughn, 105 Or App 518, 805 P2d 733 (1991)

Probation officer was not entitled to absolute judicial immunity for failure to arrest probationer upon learning of violations of conditions of probation. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)

Discretionary immunity under ORS 30.265 does not protect probation officer from liability for arrest decisions under this section. Zavalas v. Dept. of Corrections, 106 Or App 444, 809 P2d 1329 (1991)

Court has authority to extend probation without finding of violation. State v. Stuve, 111 Or App 197, 826 P2d 24 (1992), Sup Ct review denied

Failure to undertake parole revocation hearing and execution of suspended sentence until after defendant completed incarceration period for another charge was not prejudicial because there is no right to concurrent sentence. State v. Dunn, 123 Or App 288, 859 P2d 1169 (1993), Sup Ct review denied

Arrest authority does not create probation officer duty to protect public from criminal activity of probation violator. Kim v. Multnomah County, 138 Or App 417, 909 P2d 886 (1996), aff'd 328 Or 140, 970 P2d 631 (1998)

1989 amendment making credit for time served as probation condition discretionary violates constitutional prohibition against ex post facto laws where applied to crimes committed before effective date of amendment. Haas v. Hathaway, 144 Or App 478, 928 P2d 331 (1996)

Defendant does not have right under United States Constitution to confront witnesses in probation revocation proceeding. State v. Gonzalez, 212 Or App 1, 157 P3d 266 (2007)

Completed Citations

Portland v. Olson, 4 Or App 380, 481 P2d 641 (1971), Sup Ct review denied; State v. Morasch, 5 Or App 211, 483 P2d 474 (1971), Sup Ct review denied; State v. Ragghianti, 5 Or App 498, 484 P2d 1125 (1971), Sup Ct review denied

Law Review Citations

11 WLJ 288, 289 (1975)


Source

Last accessed
Jun. 26, 2021