ORS 137.717
Presumptive sentences for certain property offenders

Text
Annotations 12

(1)

When a court sentences a person convicted of:

(a)

Aggravated theft in the first degree under ORS 164.057 (Aggravated theft in the first degree), burglary in the first degree under ORS 164.225 (Burglary in the first degree) or aggravated identity theft under ORS 165.803 (Aggravated identity theft), 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 (Aggravated theft in the first degree), burglary in the first degree under ORS 164.225 (Burglary in the first degree), robbery in the third degree under ORS 164.395 (Robbery in the third degree), robbery in the second degree under ORS 164.405 (Robbery in the second degree), robbery in the first degree under ORS 164.415 (Robbery in the first degree) or aggravated identity theft under ORS 165.803 (Aggravated identity theft);

(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)

Unauthorized use of a vehicle under ORS 164.135 (Unauthorized use of a vehicle), mail theft or receipt of stolen mail under ORS 164.162 (Mail theft or receipt of stolen mail), burglary in the second degree under ORS 164.215 (Burglary in the second degree), criminal mischief in the first degree under ORS 164.365 (Criminal mischief in the first degree), computer crime under ORS 164.377 (Computer crime), robbery in the third degree under ORS 164.395 (Robbery in the third degree), forgery in the first degree under ORS 165.013 (Forgery in the first degree), criminal possession of a forged instrument in the first degree under ORS 165.022 (Criminal possession of a forged instrument in the first degree), fraudulent use of a credit card under ORS 165.055 (Fraudulent use of a credit card) (4)(b), possession of a stolen vehicle under ORS 819.300 (Possession of a stolen vehicle) or trafficking in stolen vehicles under ORS 819.310 (Trafficking in stolen vehicles), 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 (Aggravated theft in the first degree), unauthorized use of a vehicle under ORS 164.135 (Unauthorized use of a vehicle), burglary in the first degree under ORS 164.225 (Burglary in the first degree), robbery in the third degree under ORS 164.395 (Robbery in the third degree), robbery in the second degree under ORS 164.405 (Robbery in the second degree), robbery in the first degree under ORS 164.415 (Robbery in the first degree), possession of a stolen vehicle under ORS 819.300 (Possession of a stolen vehicle), trafficking in stolen vehicles under ORS 819.310 (Trafficking in stolen vehicles) or aggravated identity theft under ORS 165.803 (Aggravated identity theft);

(B)

Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section; or

(C)

(c)

Theft in the first degree under ORS 164.055 (Theft in the first degree) or identity theft under ORS 165.800 (Identity theft), 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 (Aggravated theft in the first degree), unauthorized use of a vehicle under ORS 164.135 (Unauthorized use of a vehicle), burglary in the first degree under ORS 164.225 (Burglary in the first degree), robbery in the second degree under ORS 164.405 (Robbery in the second degree), robbery in the first degree under ORS 164.415 (Robbery in the first degree), possession of a stolen vehicle under ORS 819.300 (Possession of a stolen vehicle), trafficking in stolen vehicles under ORS 819.310 (Trafficking in stolen vehicles) or aggravated identity theft under ORS 165.803 (Aggravated identity theft); or

(B)

Four or more previous convictions for any combination of 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 (Theft in the second degree);

(b)

Theft in the first degree under ORS 164.055 (Theft in the first degree);

(c)

Aggravated theft in the first degree under ORS 164.057 (Aggravated theft in the first degree);

(d)

Unauthorized use of a vehicle under ORS 164.135 (Unauthorized use of a vehicle);

(e)

Mail theft or receipt of stolen mail under ORS 164.162 (Mail theft or receipt of stolen mail);

(f)

Burglary in the second degree under ORS 164.215 (Burglary in the second degree);

(g)

Burglary in the first degree under ORS 164.225 (Burglary in the first degree);

(h)

Criminal mischief in the second degree under ORS 164.354 (Criminal mischief in the second degree);

(i)

Criminal mischief in the first degree under ORS 164.365 (Criminal mischief in the first degree);

(j)

Computer crime under ORS 164.377 (Computer crime);

(k)

Forgery in the second degree under ORS 165.007 (Forgery in the second degree);

(L)

Forgery in the first degree under ORS 165.013 (Forgery in the first degree);

(m)

Criminal possession of a forged instrument in the second degree under ORS 165.017 (Criminal possession of a forged instrument in the second degree);

(n)

Criminal possession of a forged instrument in the first degree under ORS 165.022 (Criminal possession of a forged instrument in the first degree);

(o)

Fraudulent use of a credit card under ORS 165.055 (Fraudulent use of a credit card);

(p)

Identity theft under ORS 165.800 (Identity theft);

(q)

Possession of a stolen vehicle under ORS 819.300 (Possession of a stolen vehicle);

(r)

Trafficking in stolen vehicles under ORS 819.310 (Trafficking in stolen vehicles); and

(s)

Any attempt to commit a crime listed in this subsection.

(3)

Intentionally left blank —Ed.

(a)

A presumptive sentence described in subsection (1)(a) or (b) 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)(a) or (b) of this section.

(b)

Previous convictions may not increase a presumptive sentence described in subsection (1)(a) or (b) 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 (Maximum terms of imprisonment for felonies).

(6)

The court shall sentence a person under this section to at least the presumptive sentence described in subsection (1)(a) or (b) 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)

When the court imposes a sentence of probation for a conviction for theft in the first degree or identity theft or under subsection (6) of this section, the supervisory authority as defined in ORS 144.087 (“Supervisory authority” defined) may require the person to receive a high level of supervision for at least 12 months, and may extend the period of high-level supervision for all or part of the remaining probationary term.

(8)

Intentionally left blank —Ed.

(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.

(9)

For purposes of this section, previous convictions must be proven pursuant to ORS 137.079 (Presentence report).

(10)

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; 2013 c.649 §5; 2017 c.673 §5]

Note: The amendments to 137.717 (Presumptive sentences for certain property offenders) by section 7, chapter 649, Oregon Laws 2013, become operative July 1, 2023, and apply to crimes committed on or after July 1, 2023. See section 8, chapter 649, Oregon Laws 2013. The amendments to 137.717 (Presumptive sentences for certain property offenders) by section 6, chapter 673, Oregon Laws 2017, become operative July 1, 2023, and apply to sentences imposed on or after July 1, 2023. See sections 12 and 13, chapter 673, Oregon Laws 2017. The text that is operative on and after July 1, 2023, is set forth for the user’s convenience.

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 (Aggravated theft in the first degree), burglary in the first degree under ORS 164.225 (Burglary in the first degree), robbery in the third degree under ORS 164.395 (Robbery in the third degree) or aggravated identity theft under ORS 165.803 (Aggravated identity theft), 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)

(B)

Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section; or

(C)

(b)

Unauthorized use of a vehicle under ORS 164.135 (Unauthorized use of a vehicle), mail theft or receipt of stolen mail under ORS 164.162 (Mail theft or receipt of stolen mail), burglary in the second degree under ORS 164.215 (Burglary in the second degree), criminal mischief in the first degree under ORS 164.365 (Criminal mischief in the first degree), computer crime under ORS 164.377 (Computer crime), forgery in the first degree under ORS 165.013 (Forgery in the first degree), criminal possession of a forged instrument in the first degree under ORS 165.022 (Criminal possession of a forged instrument in the first degree), fraudulent use of a credit card under ORS 165.055 (Fraudulent use of a credit card) (4)(b), possession of a stolen vehicle under ORS 819.300 (Possession of a stolen vehicle) or trafficking in stolen vehicles under ORS 819.310 (Trafficking in stolen vehicles), 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)

(B)

Two or more previous convictions for any combination of the crimes listed in subsection (2) of this section; or

(C)

(c)

(A)

A previous conviction for aggravated theft in the first degree under ORS 164.057 (Aggravated theft in the first degree), unauthorized use of a vehicle under ORS 164.135 (Unauthorized use of a vehicle), burglary in the first degree under ORS 164.225 (Burglary in the first degree), robbery in the second degree under ORS 164.405 (Robbery in the second degree), robbery in the first degree under ORS 164.415 (Robbery in the first degree), possession of a stolen vehicle under ORS 819.300 (Possession of a stolen vehicle), trafficking in stolen vehicles under ORS 819.310 (Trafficking in stolen vehicles) or aggravated identity theft under ORS 165.803 (Aggravated identity theft); or

(B)

Four or more previous convictions for any combination of 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 (Theft in the second degree);

(b)

Theft in the first degree under ORS 164.055 (Theft in the first degree);

(c)

Aggravated theft in the first degree under ORS 164.057 (Aggravated theft in the first degree);

(d)

Unauthorized use of a vehicle under ORS 164.135 (Unauthorized use of a vehicle);

(e)

Mail theft or receipt of stolen mail under ORS 164.162 (Mail theft or receipt of stolen mail);

(f)

Burglary in the second degree under ORS 164.215 (Burglary in the second degree);

(g)

Burglary in the first degree under ORS 164.225 (Burglary in the first degree);

(h)

Criminal mischief in the second degree under ORS 164.354 (Criminal mischief in the second degree);

(i)

Criminal mischief in the first degree under ORS 164.365 (Criminal mischief in the first degree);

(j)

Computer crime under ORS 164.377 (Computer crime);

(k)

Forgery in the second degree under ORS 165.007 (Forgery in the second degree);

(L)

Forgery in the first degree under ORS 165.013 (Forgery in the first degree);

(m)

Criminal possession of a forged instrument in the second degree under ORS 165.017 (Criminal possession of a forged instrument in the second degree);

(n)

Criminal possession of a forged instrument in the first degree under ORS 165.022 (Criminal possession of a forged instrument in the first degree);

(o)

Fraudulent use of a credit card under ORS 165.055 (Fraudulent use of a credit card);

(p)

Identity theft under ORS 165.800 (Identity theft);

(q)

Possession of a stolen vehicle under ORS 819.300 (Possession of a stolen vehicle);

(r)

Trafficking in stolen vehicles under ORS 819.310 (Trafficking in stolen vehicles); and

(s)

Any attempt to commit a crime listed in this subsection.

(3)

Intentionally left blank —Ed.

(a)

A presumptive sentence described in subsection (1)(a) or (b) 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)(a) or (b) of this section.

(b)

Previous convictions may not increase a presumptive sentence described in subsection (1)(a) or (b) 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)

(5)

(6)

(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)

(8)

Intentionally left blank —Ed.

(a)

(b)

(9)

For purposes of this section, previous convictions must be proven pursuant to ORS 137.079 (Presentence report).

(10)

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.

Note: 137.717 (Presumptive sentences for certain property offenders) 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.

Source: Section 137.717 — Presumptive sentences for certain property offenders, https://www.oregonlegislature.gov/bills_laws/ors/ors137.html.

Notes of Decisions

Sentence exceeding required departure sentence of 13 months incarceration requires making findings supporting additional departure. State v. Bagley, 158 Or App 589, 976 P2d 75 (1999)

Mandatory minimum sentence under 1997 version of this section superseded conflicting sentencing guideline providing shorter limit on consecutive sentences. State v. Young, 183 Or App 400, 52 P3d 1102 (2002)

Although presumptive sentence is described as being applicable when court sentences person, defendant is not entitled to retroactive application of favorable amendments adopted after commission of offense but before sentencing. State v. Sauer, 205 Or App 428, 134 P3d 1050 (2006), Sup Ct review denied

Whether convictions arose out of same criminal episode is traditional factor to be considered by judge at sentencing unless it requires factfinding beyond determination of what is in court records. State v. Mallory, 213 Or App 392, 162 P3d 297 (2007), Sup Ct review denied

“Comparable offense” means conduct criminalized by Oregon offense has enough characteristics or qualities in common with conduct criminalized by other offense to make comparison appropriate. State v. Escalera, 223 Or App 26, 194 P3d 883 (2008), Sup Ct review denied

“Federal court” means criminal court that derives its authority from Article III of United States Constitution. State v. Earls, 246 Or App 578, 267 P3d 171 (2011)

Previous conviction of federal court does not include court-martial conviction. State v. Earls, 246 Or App 578, 267 P3d 171 (2011)

Court did not err when it imposed probation revocation sanction sentence equal to maximum presumptive sentence in place at time of initial sentencing, and defendant is not entitled to retroactive application of favorable amendments adopted after initial sentencing but before probation revocation. State v. Orcutt, 280 Or App 439, 380 P3d 1105 (2016), Sup Ct review denied

Sentence is “previously received” if sentence is imposed on conviction that qualifies as “previous conviction.” State v. Watkins-McKenzie, 286 Or App 569, 400 P3d 1012 (2017)

Court has discretion to select from among eligible convictions when granting downward departure. State v. Watkins-McKenzie, 286 Or App 569, 400 P3d 1012 (2017)

Previous conviction in other state constitutes “comparable offense” when all conduct that would violate law in other state necessarily would violate Oregon statute as well if crime had occurred in Oregon. State v. Clifton, 304 Or App 39, 466 P3d 963 (2020)

Law Review Citations

75 OLR 1223 (1996)

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

ORS 137.717 Presumptive sentences for certain property offenders

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ORS 137.717
Presumptive sentences for certain property offenders