Procedure for determining whether defendant dangerous
Source:
Section 161.735 — Procedure for determining whether defendant dangerous, https://www.oregonlegislature.gov/bills_laws/ors/ors161.html.
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
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