Bill Text: OR SB496 | 2011 | Regular Session | Engrossed

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Bill Title: Relating to staying execution of a sentence during the pendency of an appeal.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB496 Detail]

Download: Oregon-2011-SB496-Engrossed.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 2829

                           A-Engrossed

                         Senate Bill 496
                 Ordered by the Senate April 29
           Including Senate Amendments dated April 29

Sponsored by Senator BONAMICI (Presession filed.)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.

  Authorizes sentencing court to enter order staying sentence or
portion of sentence   { - imposed in criminal case - }  pending
resolution of appeal.

                        A BILL FOR AN ACT
Relating to staying execution of a sentence during the pendency
  of an appeal; creating new provisions; amending ORS 135.250 and
  135.285; and repealing ORS 138.135.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1)(a) A justice, municipal or circuit court
may enter an order staying execution of a sentence, or a portion
of a sentence, pending the resolution of an appeal.
  (b) Except for good cause shown, a motion for an order under
this section must be made or filed in the trial court not later
than the filing of a notice of appeal.
  (c) The trial court has jurisdiction to enter an order under
this section and may impose conditions on the stay that the court
determines are appropriate.
  (2) In determining whether to enter an order staying the
execution of all of a sentence, or a portion of a sentence, the
trial court shall consider, among other factors the court
considers relevant:
  (a) The nature of the offense;
  (b) The severity of the sentence imposed;
  (c) The health of the defendant;
  (d) The character and strength of the evidence;
  (e) The criminal history of the defendant;
  (f) If the sentence, or the portion of the sentence, sought to
be stayed includes a term of incarceration:
  (A) The likelihood that the defendant will appear in court at
all appropriate times;
  (B) The likelihood that the defendant will comply with any
other conditions of release; and
  (C) The likelihood that the defendant will have completed, or
will have substantially completed, serving the term of
incarceration before the appeal is decided;
  (g) The likelihood that an appellate court will reverse the
sentence, or the portion of the sentence, sought to be stayed or
will reverse the judgment of conviction that includes the
sentence, or the portion of the sentence, sought to be stayed;
and
  (h) If an appellate court has issued a decision reversing the
sentence, or a portion of the sentence, sought to be stayed or
reversing the judgment of conviction that includes the sentence,
or the portion of the sentence, sought to be stayed:
  (A) Whether the reversal or any other relief described in the
appellate decision will result in the defendant having completed
service of the term of incarceration imposed; and
  (B) Whether the appellate decision remands the case for a new
trial.
  (3) If the trial court enters an order staying a term of
incarceration, the court:
  (a) May order the conditions of the original release agreement
and, if security has been posted, the security to stand pending
appeal or may increase or reduce the amount of security or impose
other conditions of release.
  (b) Shall order the defendant, as a condition of release, to:
  (A) Duly prosecute the appeal of the defendant as required by
ORS 138.005 to 138.500;
  (B) Appear at such time and place as the court may direct;
  (C) Not depart this state without leave of the court;
  (D) Comply with such other conditions as the court may impose;
and
  (E) If the judgment is affirmed, or the judgment is reversed
and the cause remanded for a new trial, immediately appear as
required by the trial court.
  (4) If the trial court enters an order staying the payment of a
monetary obligation, the court may order the defendant:
  (a) To deposit, pending appeal, the whole or any part of the
monetary obligation with the clerk of the trial court;
  (b) To file an undertaking with sufficient sureties;
  (c) To submit to an examination of assets; or
  (d) To refrain from dissipating the assets of the
defendant. + }
  SECTION 2. ORS 135.250 is amended to read:
  135.250. (1) If a defendant is released before judgment, the
conditions of the release agreement shall be that the defendant
will:
  (a) Appear to answer the charge in the court having
jurisdiction on a day certain and thereafter as ordered by the
court until the defendant is discharged or the judgment is
entered;
  (b) Submit to the orders and process of the court;
  (c) Not depart this state without leave of the court; and
  (d) Comply with such other conditions as the court may impose.
  (2)(a) In addition to the conditions listed in subsection (1)
of this section, if the defendant is charged with an offense that
also constitutes domestic violence, the court shall include as a
condition of the release agreement that the defendant not contact
the victim of the violence.
  (b) Notwithstanding paragraph (a) of this subsection, the court
may enter an order waiving the condition that the defendant have
no contact with the victim if:
  (A) The victim petitions the court for a waiver; and
  (B) The court finds, after a hearing on the petition, that
waiving the condition is in the best interests of the parties and
the community.
  (c) If the defendant was provided notice and an opportunity to
be heard, the court shall also include in the agreement, when
appropriate, terms and findings sufficient under 18 U.S.C. 922
(d)(8) and (g)(8) to affect the defendant's ability to possess
firearms and ammunition or engage in activities involving
firearms.

  (d) ORS 107.720 applies to release agreements executed by
defendants charged with an offense that constitutes domestic
violence, except that proof of service of the release agreement
is not required and the agreement may not be terminated at the
request of the victim without a hearing.
    { - (3) If the defendant is released after judgment of
conviction, the conditions of the release agreement shall be that
the defendant will: - }
    { - (a) Duly prosecute the appeal of the defendant as
required by ORS 138.005 to 138.500; - }
    { - (b) Appear at such time and place as the court may
direct; - }
    { - (c) Not depart this state without leave of the court; - }

    { - (d) Comply with such other conditions as the court may
impose; and - }
    { - (e) If the judgment is affirmed or the judgment is
reversed and the cause remanded for a new trial, immediately
appear as required by the trial court. - }
  SECTION 3. ORS 135.285 is amended to read:
  135.285.   { - (1) - }  If circumstances concerning the
defendant's release change, the court, on its own motion or upon
request by the district attorney or defendant, may modify the
release agreement or the security release.
    { - (2) After judgment of conviction in municipal or justice
court, the court shall order the original release agreement, and
if applicable, the security, to stand pending appeal, or deny,
increase or reduce the release agreement and the security. If a
defendant appeals after judgment of conviction in circuit court
for any crime other than murder or treason, release shall be
discretionary. - }
  SECTION 4.  { + ORS 138.135 is repealed. + }
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