General Provisions

ORS 161.735
Procedure for determining whether defendant dangerous


(1)

Upon motion of the district attorney, and if, in the opinion of the court, there is reason to believe that the defendant falls within ORS 161.725 (Standards for sentencing of dangerous offenders), the court shall order a presentence investigation and an examination by a psychiatrist or psychologist. The court may appoint one or more qualified psychiatrists or psychologists to examine the defendant in the local correctional facility.

(2)

All costs connected with the examination shall be paid by the state.

(3)

The examination performed pursuant to this section shall be completed within 30 days, subject to additional extensions not exceeding 30 days on order of the court. Each psychiatrist and psychologist appointed to examine a defendant under this section shall file with the court a written report of findings and conclusions, including an evaluation of whether the defendant is suffering from a severe personality disorder indicating a propensity toward criminal activity.

(4)

No statement made by a defendant under this section or ORS 137.124 (Commitment of defendant to Department of Corrections or county) or 423.090 (Establishment or designation of diagnostic facilities) shall be used against the defendant in any civil proceeding or in any other criminal proceeding.

(5)

Upon receipt of the examination and presentence reports the court shall set a time for a presentence hearing, unless the district attorney and the defendant waive the hearing. At the presentence hearing the district attorney and the defendant may question any psychiatrist or psychologist who examined the defendant pursuant to this section.

(6)

If, after considering the evidence in the case or in the presentence hearing, the jury or, if the defendant waives the right to a jury trial, the court finds that the defendant comes within ORS 161.725 (Standards for sentencing of dangerous offenders), the court may sentence the defendant as a dangerous offender.

(7)

In determining whether a defendant has been previously convicted of a felony for purposes of ORS 161.725 (Standards for sentencing of dangerous offenders), the court shall consider as prima facie evidence of the previous conviction:

(a)

A copy of the judicial record of the conviction which copy is authenticated under ORS 40.510 (Rule 902. Self-authentication);

(b)

A copy of the fingerprints of the subject of that conviction which copy is authenticated under ORS 40.510 (Rule 902. Self-authentication); and

(c)

Testimony that the fingerprints of the subject of that conviction are those of the defendant.

(8)

Subsection (7) of this section does not prohibit proof of the previous conviction by any other procedure.

(9)

The facts required to be found to sentence a defendant as a dangerous offender under this section are enhancement facts, as defined in ORS 136.760 (Definitions for ORS 136.765 to 136.785), and ORS 136.765 (Notice to defendant) to 136.785 (Burden of proof) apply to making determinations of those facts. [1971 c.743 §86; 1973 c.836 §341; 1981 c.892 §89a; 1983 c.740 §27; 1987 c.248 §1; 1999 c.163 §9; 2005 c.463 §§10,15; 2007 c.16 §5]

Notes of Decisions

Under Former Similar Statute (Ors 168.080)

Photographs included in criminal records are acceptable as other procedure for proving previous conviction. State v. Anderson, 15 Or App 607, 517 P2d 339 (1973), Sup Ct review denied

In General

Where psychiatrists who testified to defendant's mental condition at trial were available for questioning during presentence hearing, court was not required to order post-trial examination of defendant at state hospital. State v. Dodson, 25 Or App 859, 551 P2d 484 (1976)

Legislative intent of this section was not that first offender receive enhanced penalty because accomplice had previously been convicted. State v. Hicks, 38 Or App 97, 589 P2d 1130 (1979)

Psychiatric report required by this statute, based on prediction of future dangerousness, does not violate federal due process rights. State v. Smith, 66 Or App 374, 675 P2d 1060 (1984), Sup Ct review denied

Defendant may be found to be dangerous offender under this section even if he refuses psychiatric evaluation as required by this section, provided that presentence report and evidence in case sufficiently support that finding. State v. Brown, 82 Or App 256, 728 P2d 534 (1986)

Whether defendant is suffering from "severe personality disorder indicating a propensity toward criminal activity" is determination to be made by court upon consideration of psychiatric report, presentence report and evidence in case or that presented at presentence hearing. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986); State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Although trial court is required to order psychiatric examination of defendant under ORS 161.735 (1), court is not bound by conclusions of any psychotherapist but is required by statute to make its own findings as to whether defendant is suffering from severe personality disorder with propensity toward criminal activity. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986); State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

While court must consider psychiatric report, statute does not require that psychiatrist make finding of dangerousness or severe personality disorder. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986); State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Even if all report discloses is that defendant was uncooperative and that psychiatric analysis could not be made, that does not render report insufficient for purposes of this statute. State v. Pryor, 96 Or App 181, 772 P2d 431 (1989), Sup Ct review denied; State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Statements made during psychiatric evaluation pursuant to this provision may not be used for sentencing purposes. U.S. v. Harrington, 923 F2d 1371 (9th Cir. 1991)

After finding defendant is dangerous offender under this section and ORS 161.725, sentencing court may not sentence defendant to determinate term under ORS 137.635. State v. Reese, 114 Or App 557, 836 P2d 737 (1992)

Where 30-year dangerous offender sentence exceeded prescribed statutory maximum sentence, imposition of dangerous offender sentence based on finding of fact by court violated defendant's federal constitutional right to have fact proved to jury beyond reasonable doubt. State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), Sup Ct review denied

§§ 161.705 to 161.735

Notes of Decisions

By enacting this section, the legislature intended to authorize a compromise of all Class C felonies which could be punished "as a misdemeanor." State v. Dumond, 270 Or 854, 530 P2d 32 (1974)

Imposition of one-year jail term upon conviction of criminal activity in drugs was within maximum sentence authorized for crime, was imposed after defendant had violated probation, and did not shock the conscience. State v. Davis, 31 Or App 439, 570 P2d 683 (1977), Sup Ct review denied

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021