Bill Text: OR SB682 | 2013 | Regular Session | Introduced
Bill Title: Relating to crime; prescribing an effective date.
Sponsorship: Committee Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB682 Detail]
Download: Oregon-2013-SB682-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 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 2488-1
Senate Bill 682
Sponsored by COMMITTEE ON GENERAL GOVERNMENT, CONSUMER AND SMALL
BUSINESS PROTECTION
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 as
introduced.
Repeals death penalty.
Takes effect only if ___ Joint Resolution ___ (2013) (LC 2488)
is approved by people at next regular general election. Takes
effect on effective date of constitutional amendment proposed
in ___ Joint Resolution ___ (2013) (LC 2488).
A BILL FOR AN ACT
Relating to crime; creating new provisions; amending ORS 40.015,
135.045, 136.230, 137.635, 137.707, 138.500, 138.504, 138.510,
138.590, 144.110, 144.122, 144.126, 146.003, 161.620, 163.105,
163.150, 163.155, 421.084 and 475.188; repealing ORS 137.463,
137.464, 137.466, 137.467, 137.473, 137.476, 137.478, 137.482,
138.012 and 138.686; and prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.105 is amended to read:
163.105. Notwithstanding the provisions of ORS chapter 144 and
ORS 421.450 to 421.490:
(1)(a) { - Except as otherwise provided in ORS 137.700, - }
When a defendant is convicted of aggravated murder as defined by
ORS 163.095, the defendant shall be sentenced, pursuant to ORS
163.150, to { - death, - } life imprisonment without the
possibility of release or parole or life imprisonment.
(b) A person sentenced to life imprisonment without the
possibility of release or parole under this section
{ - shall - } { + may + } not have that sentence suspended,
deferred or commuted by any judicial officer, and the State Board
of Parole and Post-Prison Supervision may not parole the prisoner
{ - nor - } { + or + } reduce the period of confinement in any
manner whatsoever. The Department of Corrections or any executive
official may not permit the prisoner to participate in any sort
of release or furlough program.
(c) If sentenced to life imprisonment, the court shall order
that the defendant { - shall - } be confined for a minimum of
30 years without possibility of parole, release to post-prison
supervision, release on work release or any form of temporary
leave or employment at a forest or work camp.
(2) At any time after completion of a minimum period of
confinement pursuant to subsection (1)(c) of this section, the
State Board of Parole and Post-Prison Supervision, upon the
petition of a prisoner so confined, shall hold a hearing to
determine if the prisoner is likely to be rehabilitated within a
reasonable period of time. The sole issue is whether { - or
not - } the prisoner is likely to be rehabilitated within a
reasonable period of time. At the hearing, the prisoner has:
(a) The burden of proving by a preponderance of the evidence
the likelihood of rehabilitation within a reasonable period of
time;
(b) The right, if the prisoner is without sufficient funds to
employ an attorney, to be represented by legal counsel, appointed
by the board, at board expense; and
(c) The right to a subpoena upon a showing of the general
relevance and reasonable scope of the evidence sought, provided
that any subpoena issued on behalf of the prisoner must be issued
by the State Board of Parole and Post-Prison Supervision pursuant
to rules adopted by the board.
(3) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its members, finds that the prisoner is
capable of rehabilitation and that the terms of the prisoner's
confinement should be changed to life imprisonment with the
possibility of parole, release to post-prison supervision or work
release, it shall enter an order to that effect and the order
shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole, release to
post-prison supervision or work release and may set a release
date. Otherwise the board shall deny the relief sought in the
petition.
(4) If the board denies the relief sought in the petition, the
board shall determine the date of the subsequent hearing, and the
prisoner may petition for an interim hearing, in accordance with
ORS 144.285.
(5) The board's final order shall be accompanied by findings of
fact and conclusions of law. The findings of fact shall consist
of a concise statement of the underlying facts supporting the
findings as to each contested issue of fact and as to each
ultimate fact required to support the board's order.
SECTION 2. ORS 163.150 is amended to read:
163.150. (1)(a) Upon a finding that the defendant is guilty of
aggravated murder, the court { - , except as otherwise provided
in subsection (3) of this section, - } shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to life imprisonment, as described in ORS 163.105
(1)(c) { - , - } { + or + } life imprisonment without the
possibility of release or parole, as described in ORS 163.105
(1)(b) { - , or death - } . The proceeding shall be conducted in
the trial court before the trial jury as soon as practicable. If
a juror for any reason is unable to perform the function of a
juror, the juror shall be dismissed from the sentencing
proceeding. The court shall cause to be drawn the name of one of
the alternate jurors, who shall then become a member of the jury
for the sentencing proceeding notwithstanding the fact that the
alternate juror did not deliberate on the issue of guilt. The
substitution of an alternate juror shall be allowed only if the
jury has not begun to deliberate on the issue of the sentence.
{ + (b) + } If the defendant has pleaded guilty, the
sentencing proceeding shall be conducted before a jury impaneled
for that purpose. { + If the defendant waives all rights to a
jury sentencing proceeding, the court shall conduct the
sentencing proceeding as trier of fact.
(c) + } In the { + sentencing + } proceeding, evidence may be
presented as to any matter that the court deems relevant to
sentence including { - , but not limited to, - } victim impact
evidence relating to the personal characteristics of the victim
or the impact of the crime on the victim's family and any
{ + other relevant + } aggravating or mitigating
evidence { + . + } { - relevant to the issue in paragraph
(b)(D) of this subsection; however, - } Neither the state nor
the defendant
{ - shall be allowed to - } { + may + } introduce repetitive
evidence that has previously been offered and received during the
trial on the issue of guilt. The court shall instruct the jury
that all evidence previously offered and received may be
considered for purposes of the sentencing hearing. { - This
paragraph shall not be construed to authorize the introduction of
any evidence secured in violation of the Constitution of the
United States or of the State of Oregon. - } The state and the
defendant or the counsel of the defendant shall be permitted to
present arguments { - for or against a sentence of death
and - } for or against a sentence of life imprisonment with or
without the possibility of release or parole.
{ - (b) Upon the conclusion of the presentation of the
evidence, the court shall submit the following issues to the
jury: - }
{ - (A) Whether the conduct of the defendant that caused the
death of the deceased was committed deliberately and with the
reasonable expectation that death of the deceased or another
would result; - }
{ - (B) Whether there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society; - }
{ - (C) If raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased; and - }
{ - (D) Whether the defendant should receive a death
sentence. - }
{ - (c)(A) The court shall instruct the jury to consider, in
determining the issues in paragraph (b) of this subsection, any
mitigating circumstances offered in evidence, including but not
limited to the defendant's age, the extent and severity of the
defendant's prior criminal conduct and the extent of the mental
and emotional pressure under which the defendant was acting at
the time the offense was committed. - }
{ - (B) The court shall instruct the jury to answer the
question in paragraph (b)(D) of this subsection 'no' if, after
considering any aggravating evidence and any mitigating evidence
concerning any aspect of the defendant's character or background,
or any circumstances of the offense and any victim impact
evidence as described in paragraph (a) of this subsection, one or
more of the jurors believe that the defendant should not receive
a death sentence. - }
{ - (d) The state must prove each issue submitted under
paragraph (b)(A) to (C) of this subsection beyond a reasonable
doubt, and the jury shall return a special verdict of 'yes' or '
no' on each issue considered. - }
{ - (e) The court shall charge the jury that it may not
answer any issue 'yes,' under paragraph (b) of this subsection
unless it agrees unanimously. - }
{ - (f) If the jury returns an affirmative finding on each
issue considered under paragraph (b) of this subsection, the
trial judge shall sentence the defendant to death. - }
{ - (2)(a) Upon the conclusion of the presentation of the
evidence, the court shall also instruct the jury that if it
reaches a negative finding on any issue under subsection (1)(b)
of this section, the trial court shall sentence the defendant to
life imprisonment without the possibility of release or parole,
as described in ORS 163.105 (1)(b), unless 10 or more members of
the jury further find that there are sufficient mitigating
circumstances to warrant life imprisonment, in which case the
trial court shall sentence the defendant to life imprisonment as
described in ORS 163.105 (1)(c). - }
{ - (b) If the jury returns a negative finding on any issue
under subsection (1)(b) of this section and further finds that
there are sufficient mitigating circumstances to warrant life
imprisonment, the trial court shall sentence the defendant to
life imprisonment in the custody of the Department of Corrections
as provided in ORS 163.105 (1)(c). - }
{ - (3)(a) When the defendant is found guilty of aggravated
murder, and ORS 137.707 (2) applies or the state advises the
court on the record that the state declines to present evidence
for purposes of sentencing the defendant to death, the court: - }
{ - (A) Shall not conduct a sentencing proceeding as
described in subsection (1) of this section, and a sentence of
death shall not be ordered. - }
{ - (B) Shall conduct a sentencing proceeding to determine
whether the defendant shall be sentenced to life imprisonment
without the possibility of release or parole as described in ORS
163.105 (1)(b) or life imprisonment as described in ORS 163.105
(1)(c). If the defendant waives all rights to a jury sentencing
proceeding, the court shall conduct the sentencing proceeding as
the trier of fact. The procedure for the sentencing proceeding,
whether before a court or a jury, shall follow the procedure of
subsection (1)(a) of this section, as modified by this
subsection. In the proceeding, evidence may be presented as to
any matter that the court deems relevant to sentence, including,
but not limited to, victim impact evidence relating to the
personal characteristics of the victim or the impact of the crime
on the victim's family. - }
{ - (b) - } { + (d) + } Following the presentation of
evidence and argument under paragraph { - (a) - } { + (c) + }
of this subsection, the court shall instruct the jury that the
trial court { - shall - } { + is required to + } sentence the
defendant to life imprisonment without the possibility of release
or parole as described in ORS 163.105 (1)(b), unless after
considering all of the evidence submitted, 10 or more members of
the jury find there are sufficient mitigating circumstances to
warrant life imprisonment with the possibility of parole as
described in ORS 163.105 (1)(c). If 10 or more members of the
jury find there are sufficient mitigating circumstances to
warrant life imprisonment with the possibility of parole, the
trial court shall sentence the defendant to life imprisonment as
described in ORS 163.105 (1)(c).
{ - (c) - } { + (2) Notwithstanding subsection (1) of this
section, the court may sentence + } { - Nothing in this
subsection shall preclude the court from sentencing - } the
defendant to life imprisonment, as described in ORS 163.105
(1)(c), or life imprisonment without the possibility of release
or parole, as described in ORS 163.105 (1)(b), pursuant to a
stipulation of sentence or stipulation of sentencing facts agreed
to and offered by both parties { + , + } if the defendant waives
all rights to a jury sentencing proceeding.
{ - (4) - } { + (3) + } If any part of { - subsection (2)
of - } this section is held invalid and { + , + } as a result
{ - thereof - } { + , + } a defendant who has been sentenced to
life imprisonment without possibility of release or parole will
instead be sentenced to life imprisonment in the custody of the
Department of Corrections as provided in ORS 163.105 (2), the
defendant shall be confined for a minimum of 30 years without
possibility of parole, release on work release or any form of
temporary leave or employment at a forest or work camp.
{ - Subsection (2) of this section shall apply only to trials
commencing on or after July 19, 1989. - }
{ - (5) - } { + (4) + } Notwithstanding subsection (1)
{ - (a) - } of this section, if the trial court grants a
mistrial during the sentencing proceeding, the trial court, at
the election of the state, shall either:
(a) Sentence the defendant to imprisonment for life in the
custody of the Department of Corrections as provided in ORS
163.105 (1)(c); or
(b) Impanel a new sentencing jury for the purpose of conducting
a new sentencing proceeding to determine if the defendant should
be sentenced to:
{ - (A) Death; - }
{ - (B) - } { + (A) + } Imprisonment for life without the
possibility of release or parole as provided in ORS 163.105
(1)(b); or
{ - (C) - } { + (B) + } Imprisonment for life in the
custody of the Department of Corrections as provided in ORS
163.105 (1)(c).
SECTION 2a. { + Section 2b of this 2013 Act is added to and
made a part of ORS chapter 163. + }
SECTION 2b. { + A person who is found guilty of murder or
aggravated murder shall be actively engaged full-time in work as
required by Article I, section 41, of the Oregon Constitution.
Notwithstanding ORS 421.437, the Department of Corrections shall
first apply all compensation earned by the person in prison work
programs, and all other money available in the person's inmate
trust account, against any restitution, fine or other monetary
obligation imposed in the judgment of conviction, and shall
thereafter deposit those amounts in the Criminal Injuries
Compensation Account. + }
SECTION 3. ORS 137.707 is amended to read:
137.707. (1)(a) Notwithstanding any other provision of law,
when a person charged with aggravated murder, as defined in ORS
163.095, or an offense listed in subsection (4) { - (a) - } of
this section is 15, 16 or 17 years of age at the time the offense
is committed, { - and the offense is committed on or after
April 1, 1995, or when a person charged with an offense listed in
subsection (4)(b) of this section is 15, 16 or 17 years of age at
the time the offense is committed, and the offense is committed
on or after October 4, 1997, or when a person charged with the
offense described in subsection (4)(c) of this section is 15, 16
or 17 years of age at the time the offense is committed and the
offense is committed on or after January 1, 2008, - } the person
shall be prosecuted as an adult in criminal court.
(b) A district attorney, the Attorney General or a juvenile
department counselor may not file in juvenile court a petition
alleging that a person has committed an act that, if committed by
an adult, would constitute aggravated murder or an offense listed
in subsection (4) of this section if the person was 15, 16 or 17
years of age at the time the act was committed.
(2) When a person charged under this section is convicted of an
offense listed in subsection (4) of this section, the court shall
impose at least the presumptive term of imprisonment provided for
the offense in subsection (4) of this section. The court may
impose a greater presumptive term if otherwise permitted by law,
but may not impose a lesser term. The person is not, during the
service of the term of imprisonment, eligible for release on
post-prison supervision or any form of temporary leave from
custody. The person is not eligible for any reduction in, or
based on, the minimum sentence for any reason under ORS 421.121
or any other provision of law. ORS { - 138.012, - } 163.105
and 163.150 apply to sentencing a person prosecuted under this
section and convicted of aggravated murder under ORS 163.095
{ - except that a person who was under 18 years of age at the
time the offense was committed is not subject to a sentence of
death - } .
(3) The court shall commit the person to the legal and physical
custody of the Department of Corrections.
(4) The offenses to which this section applies and the
presumptive sentences are:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(a)(A)Murder, as defined in
ORS 163.115...300 months
(B) Attempt or conspiracy
to commit aggravated
murder, as defined
in ORS 163.095.120 months
(C) Attempt or conspiracy
to commit murder, as
defined in ORS 163.115.90 months
(D) Manslaughter in the
first degree, as defined
in ORS 163.118.120 months
(E) Manslaughter in the
second degree, as defined
in ORS 163.125.75 months
(F) Assault in the first
degree, as defined
in ORS 163.185.90 months
(G) Assault in the second
degree, as defined
in ORS 163.175.70 months
(H) Kidnapping in the first
degree, as defined in
ORS 163.235....90 months
(I) Kidnapping in the second
degree, as defined in
ORS 163.225....70 months
(J) Rape in the first degree,
as defined in ORS 163.375.100 months
(K) Rape in the second
degree, as defined in
ORS 163.365....75 months
(L) Sodomy in the first
degree, as defined in
ORS 163.405...100 months
(M) Sodomy in the second
degree, as defined in
ORS 163.395....75 months
(N) Unlawful sexual
penetration in the first
degree, as defined
in ORS 163.411.100 months
(O) Unlawful sexual
penetration in the
second degree, as
defined in ORS 163.408.75 months
(P) Sexual abuse in the first
degree, as defined in
ORS 163.427....75 months
(Q) Robbery in the first
degree, as defined in
ORS 164.415....90 months
(R) Robbery in the second
degree, as defined in
ORS 164.405....70 months
(b)(A)Arson in the first degree,
as defined in
ORS 164.325, when
the offense represented
a threat of serious
physical injury.90 months
(B) Using a child in a display
of sexually explicit
conduct, as defined in
ORS 163.670....70 months
(C) Compelling prostitution,
as defined in ORS 167.017
(1)(a), (b) or (d).70 months
(c) Aggravated vehicular
homicide, as defined in
ORS 163.149...240 months
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(5) If a person charged with an offense under this section is
found guilty of a lesser included offense and the lesser included
offense is:
(a) An offense listed in subsection (4) of this section, the
court shall sentence the person as provided in subsection (2) of
this section.
(b) Not an offense listed in subsection (4) of this section:
(A) But constitutes an offense for which waiver is authorized
under ORS 419C.349, the court, upon motion of the district
attorney, shall hold a hearing to determine whether to retain
jurisdiction or to transfer the case to juvenile court for
disposition. In determining whether to retain jurisdiction, the
court shall consider the criteria for waiver in ORS 419C.349. If
the court retains jurisdiction, the court shall sentence the
person as an adult under sentencing guidelines. If the court does
not retain jurisdiction, the court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile
court for disposition under ORS 419C.067 and 419C.411.
(B) And is not an offense for which waiver is authorized under
ORS 419C.349, the court may not sentence the person. The court
shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile
court for disposition under ORS 419C.067 and 419C.411.
(6) When a person is charged under this section, other offenses
based on the same act or transaction shall be charged as separate
counts in the same accusatory instrument and consolidated for
trial, whether or not the other offenses are aggravated murder or
offenses listed in subsection (4) of this section. If it appears,
upon motion, that the state or the person charged is prejudiced
by the joinder and consolidation of offenses, the court may order
an election or separate trials of counts or provide whatever
other relief justice requires.
(7)(a) If a person charged and tried as provided in subsection
(6) of this section is found guilty of aggravated murder or an
offense listed in subsection (4) of this section and one or more
other offenses, the court shall impose the sentence for
aggravated murder or the offense listed in subsection (4) of this
section as provided in subsection (2) of this section and shall
impose sentences for the other offenses as otherwise provided by
law.
(b) If a person charged and tried as provided in subsection (6)
of this section is not found guilty of aggravated murder or an
offense listed in subsection (4) of this section, but is found
guilty of one of the other charges that constitutes an offense
for which waiver is authorized under ORS 419C.349, the court,
upon motion of the district attorney, shall hold a hearing to
determine whether to retain jurisdiction or to transfer the case
to juvenile court for disposition. In determining whether to
retain jurisdiction, the court shall consider the criteria for
waiver in ORS 419C.349. If the court retains jurisdiction, the
court shall sentence the person as an adult under sentencing
guidelines. If the court does not retain jurisdiction, the court
shall:
(A) Order that a presentence report be prepared;
(B) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(C) Enter an order transferring the case to the juvenile court
for disposition under ORS 419C.067 and 419C.411.
SECTION 4. ORS 144.122 is amended to read:
144.122. (1) After the initial parole release date has been set
under ORS 144.120 and after a minimum period of time established
by the State Board of Parole and Post-Prison Supervision under
subsection (2)(a) of this section, the prisoner may request that
the parole release date be reset to an earlier date. The board
may grant the request upon a determination by the board that
continued incarceration is cruel and inhumane and that resetting
the release date to an earlier date is not incompatible with the
best interests of the prisoner and society and that the prisoner:
(a) Has demonstrated an extended course of conduct indicating
outstanding reformation;
(b) Suffers from a severe medical condition including terminal
illness; or
(c) Is elderly and is permanently incapacitated in such a
manner that the prisoner is unable to move from place to place
without the assistance of another person.
(2) The Advisory Commission on Prison Terms and Parole
Standards may propose to the board and the board shall adopt
rules:
(a) Establishing minimum periods of time to be served by
prisoners before application may be made for a reset of release
date under subsection (1) of this section;
(b) Detailing the criteria set forth under subsection (1) of
this section for the resetting of a parole release date; and
(c) Establishing criteria for parole release plans for
prisoners released under this section that, at a minimum, must
insure appropriate supervision and services for the person
released.
(3) The provisions of subsection (1)(b) of this section apply
to prisoners sentenced in accordance with ORS 161.610.
(4) The provisions of this section do not apply to prisoners
sentenced to life imprisonment without the possibility of release
or parole under ORS { - 138.012 or - } 163.150.
SECTION 5. ORS 144.126 is amended to read:
144.126. (1) The State Board of Parole and Post-Prison
Supervision may advance the release date of a prisoner who was
sentenced in accordance with rules of the Oregon Criminal Justice
Commission or ORS 161.610. The release date may be advanced if
the board determines that continued incarceration is cruel and
inhumane and that advancing the release date of the prisoner is
not incompatible with the best interests of the prisoner and
society and that the prisoner is:
(a) Suffering from a severe medical condition including
terminal illness; or
(b) Elderly and permanently incapacitated in such a manner that
the prisoner is unable to move from place to place without the
assistance of another person.
(2) The board shall adopt rules establishing criteria for
release plans for prisoners released under this section that, at
a minimum, must insure appropriate supervision and services for
the person released.
(3) The provisions of this section do not apply to prisoners
sentenced to life imprisonment without the possibility of release
or parole under ORS { - 138.012 or - } 163.150.
SECTION 6. ORS 161.620 is amended to read:
161.620. Notwithstanding any other provision of law, a sentence
imposed upon any person waived from the juvenile court under ORS
419C.349, 419C.352, 419C.364 or 419C.370 { - shall - }
{ + may + } not include { - any sentence of death or - }
{ + a sentence of + } life imprisonment without the possibility
of release or parole { - nor - } { + or the + } imposition of
any mandatory minimum sentence { + , + } except that a mandatory
minimum sentence under:
(1) ORS 163.105 (1)(c) shall be imposed; and
(2) ORS 161.610 may be imposed.
SECTION 7. ORS 138.500 is amended to read:
138.500. (1) If a defendant in a criminal action or a
petitioner in a proceeding pursuant to ORS 138.510 to 138.680
wishes to appeal from an appealable adverse final order or
judgment of a circuit court and if the person is without funds to
employ suitable counsel possessing skills and experience
commensurate with the nature and complexity of the case for the
appeal, the person may request the circuit court from which the
appeal is or would be taken to appoint counsel to represent the
person on appeal. The following apply to a request under this
subsection:
(a) The request shall be in writing and shall be made within
the time during which an appeal may be taken or, if the notice of
appeal has been filed, at any time thereafter. The request shall
include a brief statement of the assets, liabilities and income
in the previous year of the person unless the court already
determined the person to be financially eligible for appointed
counsel at state expense for purposes of the specific case, in
which instance, the written request need only so indicate.
However, if a request relies on a court's previous determination
that the person is financially eligible, the court, in its
discretion, may require the person to submit a new statement of
assets, liabilities and income.
(b) If, based upon a request under paragraph (a) of this
subsection, the court finds that petitioner or defendant
previously received the services of appointed counsel or
currently is without funds to employ suitable counsel for an
appeal, the court shall appoint counsel to represent petitioner
or defendant on the appeal.
{ - (2)(a) Notwithstanding subsection (1) of this section,
when a defendant has been sentenced to death, the request for
appointed counsel shall be made to the Supreme Court. The Supreme
Court shall appoint suitable counsel to represent the defendant
on the appeal. - }
{ - (b) - } { + (2)(a) + } After the notice of appeal has
been filed, the Court of Appeals has concurrent authority to
appoint or substitute counsel or appoint or substitute a legal
advisor for the defendant under ORS 138.504.
{ - (c) - } { + (b) + } The Supreme Court has concurrent
authority to appoint or substitute counsel or appoint or
substitute a legal advisor for the defendant under ORS 138.504 in
connection with review of a Court of Appeals decision under ORS
2.520.
{ - (d) - } { + (c) + } Neither the Court of Appeals nor
the Supreme Court may substitute one appointed counsel for
another under paragraph
{ - (b) or (c) - } { + (a) or (b) + } of this subsection
except pursuant to the policies, procedures, standards and
guidelines of the Public Defense Services Commission.
(3) Whenever a defendant in a criminal action or a petitioner
in a proceeding pursuant to ORS 138.510 to 138.680 has filed a
notice of appeal from an appealable adverse final order or
judgment of a circuit court and the person is without funds to
pay for a transcript, or portion thereof, necessary to present
adequately the case upon appeal, the person may request the
public defense services executive director to have the
transcript, or portion thereof, prepared for purposes of appeal.
The following apply to a request under this subsection:
(a) The public defense services executive director shall
authorize the preparation of a transcript after a court has
determined that the person is eligible for court-appointed
counsel or, if the person has not applied for court-appointed
counsel, the person submits a statement of the person's assets,
liabilities and income in the previous year and the director
determines that the person is eligible for preparation of a
transcript at state expense.
(b) The cost of the transcript preparation under paragraph (a)
of this subsection shall be in the amount prescribed in ORS
21.345 and paid for as provided by the policies, procedures,
standards and guidelines of the Public Defense Services
Commission.
(4) After submission of the original brief by counsel, the
public defense services executive director shall determine the
cost of briefs and any other expenses of appellant, except
transcripts, necessary to appellate review and a reasonable
amount of compensation for counsel appointed under this section.
Compensation payable to appointed counsel shall be as established
under ORS 151.216. On any review by the Supreme Court of the
judgment of the Court of Appeals the public defense services
executive director shall similarly determine the costs of briefs
and any other expenses necessary for review and a reasonable
amount of compensation for counsel appointed under this section.
(5) Costs, expenses and compensation determined by the public
defense services executive director under subsection (4) of this
section shall be paid by the public defense services executive
director from funds available for that purpose.
(6) If the public defense services executive director denies,
in whole or in part, costs, expenses and compensation submitted
for review and payment, the person who submitted the payment
request may appeal the decision to the Chief Judge of the Court
of Appeals, if the appeal is in the Court of Appeals, or to the
Chief Justice of the Supreme Court, if the appeal is in the
Supreme Court. The Chief Judge, Chief Justice or the designee of
the Chief Judge or Chief Justice, as appropriate, shall review
the public defense services executive director's decision for
abuse of discretion. The decision of the Chief Judge, the Chief
Justice or the designee of the Chief Judge or Chief Justice is
final.
(7) The provisions of this section shall apply in favor of the
defendant in a criminal action or the petitioner in a proceeding
pursuant to ORS 138.510 to 138.680 when the person is respondent
in an appeal taken by the state in a criminal action or by the
defendant in a proceeding pursuant to ORS 138.510 to 138.680.
(8) As used in this section, 'criminal action' does not include
an action that involves only violations.
(9) As used in subsection (4) of this section, 'counsel '
includes a legal advisor appointed under ORS 138.504.
SECTION 8. ORS 138.510 is amended to read:
138.510. (1) Except as otherwise provided in ORS 138.540, any
person convicted of a crime under the laws of this state may file
a petition for post-conviction relief pursuant to ORS 138.510 to
138.680.
{ - (2) A petition for post-conviction relief may be filed by
one person on behalf of another person who has been convicted of
aggravated murder and sentenced to death only if the person
filing the petition demonstrates by a preponderance of the
evidence that: - }
{ - (a) The person sentenced to death is unable to file a
petition on the person's own behalf due to mental incapacity or
because of a lack of access to the court; and - }
{ - (b) The person filing the petition has a significant
relationship with the person sentenced to death and will act in
the best interest of the person on whose behalf the petition is
being filed. - }
{ - (3) - } { + (2) + }A petition pursuant to ORS 138.510
to 138.680 must be filed within two years of the following,
unless the court on hearing a subsequent petition finds grounds
for relief asserted which could not reasonably have been raised
in the original or amended petition:
(a) If no appeal is taken, the date the judgment or order on
the conviction was entered in the register.
(b) If an appeal is taken, the date the appeal is final in the
Oregon appellate courts.
(c) If a petition for certiorari to the United States Supreme
Court is filed, the later of:
(A) The date of denial of certiorari, if the petition is
denied; or
(B) The date of entry of a final state court judgment following
remand from the United States Supreme Court.
{ - (4) - } { + (3) + } A one-year filing period shall
apply retroactively to petitions filed by persons whose
convictions and appeals became final before August 5, 1989, and
any such petitions must be filed within one year after November
4, 1993. A person whose post-conviction petition was dismissed
prior to November 4, 1993, cannot file another post-conviction
petition involving the same case.
{ - (5) - } { + (4) + } The remedy created by ORS 138.510
to 138.680 is available to persons convicted before May 26, 1959.
{ - (6) - } { + (5) + } In any post-conviction proceeding
pending in the courts of this state on May 26, 1959, the person
seeking relief in such proceedings shall be allowed to amend the
action and seek relief under ORS 138.510 to 138.680. If such
person does not choose to amend the action in this manner, the
law existing prior to May 26, 1959, shall govern the case.
SECTION 9. ORS 138.590 is amended to read:
138.590. (1) Any petitioner who is unable to pay the expenses
of a proceeding pursuant to ORS 138.510 to 138.680 or to employ
suitable counsel possessing skills and experience commensurate
with the nature of the conviction and complexity of the case for
the proceeding may proceed as a financially eligible person
pursuant to this section upon order of the circuit court in which
the petition is filed.
(2) If the petitioner wishes to proceed as a financially
eligible person, the person shall file with the petition an
affidavit stating inability to pay the expenses of a proceeding
pursuant to ORS 138.510 to 138.680, including, but not limited
to, the filing fee required by ORS 138.560, or to employ suitable
counsel for such a proceeding. The affidavit shall contain a
brief statement of the petitioner's assets and liabilities and
income during the previous year. If the circuit court is
satisfied that the petitioner is unable to pay such expenses or
to employ suitable counsel, it shall order that the petitioner
proceed as a financially eligible person. { - If the court
finds that a petitioner who has been sentenced to death is not
competent to decide whether to accept or reject the appointment
of counsel, the court shall appoint counsel to represent the
petitioner. However, - } When a circuit court orders
petitioner's case transferred to another circuit court as
provided in ORS 138.560 (4), the matter of petitioner's
proceeding as a financially eligible person shall be determined
by the latter court.
{ - (3) If a petitioner who has been sentenced to death
qualifies for the appointment of counsel under this section but
rejects the appointment, the court shall determine, after a
hearing if necessary, whether the petitioner rejected the offer
of counsel and made the decision with an understanding of its
legal consequences. The court shall make appropriate findings on
the record. - }
{ - (4) - } { + (3) + } In the order to proceed as a
financially eligible person, the circuit court shall appoint
suitable counsel to represent petitioner. Counsel so appointed
shall represent petitioner throughout the proceedings in the
circuit court. The court may not substitute one appointed counsel
for another except pursuant to the policies, procedures,
standards and guidelines of the Public Defense Services
Commission.
{ - (5) - } { + (4) + } If counsel appointed by the circuit
court determines that the petition as filed by petitioner is
defective, either in form or in substance, or both, counsel may
move to amend the petition within 15 days following counsel's
appointment, or within a further period as the court may allow.
The amendment shall be permitted as of right at any time during
this period. If appointed counsel believes that the original
petition cannot be construed to state a ground for relief under
ORS 138.510 to 138.680, and cannot be amended to state a ground
for relief, counsel shall, in lieu of moving to amend the
petition, inform the petitioner and notify the circuit court of
counsel's belief by filing an affidavit stating the belief and
the reasons therefor with the clerk of the circuit court. This
affidavit does not constitute a ground for denying the petition
prior to a hearing upon its sufficiency, but the circuit court
may consider the affidavit in deciding upon the sufficiency of
the petition at the hearing.
{ - (6) - } { + (5) + } When a petitioner has been ordered
to proceed as a financially eligible person, the expenses which
are necessary for the proceedings upon the petition in the
circuit court and the compensation to appointed counsel for
petitioner as provided in this subsection shall be paid by the
public defense services executive director from funds available
for the purpose. At the conclusion of proceedings on a petition
pursuant to ORS 138.510 to 138.680, the public defense services
executive director shall determine and pay, as provided by the
policies, procedures, standards and guidelines of the Public
Defense Services Commission, the amount of expenses of petitioner
and compensation for the services of appointed counsel in the
proceedings in the circuit court.
{ - (7) - } { + (6) + } If the public defense services
executive director denies, in whole or in part, expenses and
compensation submitted for review and payment, the person who
submitted the payment request may appeal the decision to the
presiding judge of the circuit court. The presiding judge or the
designee of the presiding judge shall review the public defense
services executive director's decision for abuse of discretion.
The decision of the presiding judge or the designee of the
presiding judge is final.
{ - (8)(a) - } { + (7)(a) + } When a petitioner has been
authorized to proceed as a financially eligible person, all court
fees in the circuit court, except for the filing fee required by
ORS 138.560, are waived.
(b) When a petitioner is allowed to file a petition without
payment of the fee required by ORS 138.560 due to inability to
pay, the fee is not waived but may be drawn from, or charged
against, the petitioner's trust account if the petitioner is an
inmate in a correctional facility.
{ - (9) Notwithstanding any other provision of this chapter,
a court may not appoint as counsel for a petitioner who has been
sentenced to death a counsel who previously represented the
petitioner at trial or on automatic and direct review in the case
resulting in the death sentence unless the petitioner and the
counsel expressly request continued representation. - }
SECTION 10. ORS 40.015 is amended to read:
40.015. (1) The Oregon Evidence Code applies to all courts in
this state except for:
(a) A hearing or mediation before a magistrate of the Oregon
Tax Court as provided by ORS 305.501;
(b) The small claims department of a circuit court as provided
by ORS 46.415; and
(c) The small claims department of a justice court as provided
by ORS 55.080.
(2) The Oregon Evidence Code applies generally to civil
actions, suits and proceedings, criminal actions and proceedings
and to contempt proceedings except those in which the court may
act summarily.
(3) ORS 40.225 to 40.295 relating to privileges apply at all
stages of all actions, suits and proceedings.
(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in
the following situations:
(a) The determination of questions of fact preliminary to
admissibility of evidence when the issue is to be determined by
the court under ORS 40.030.
(b) Proceedings before grand juries, except as required by ORS
132.320.
(c) Proceedings for extradition, except as required by ORS
133.743 to 133.857.
(d) Sentencing proceedings, except proceedings under ORS
{ - 138.012 and - } 163.150, as required by ORS 137.090 or
proceedings under ORS 136.765 to 136.785.
(e) Proceedings to revoke probation, except as required by ORS
137.090.
(f) Issuance of warrants of arrest, bench warrants or search
warrants.
(g) Proceedings under ORS chapter 135 relating to conditional
release, security release, release on personal recognizance, or
preliminary hearings, subject to ORS 135.173.
(h) Proceedings to determine proper disposition of a child in
accordance with ORS 419B.325 (2) and 419C.400 (4).
(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230,
813.250 and 813.255 to determine whether a driving while under
the influence of intoxicants diversion agreement should be
allowed or terminated.
(j) Proceedings under ORS 147.530 relating to victims' rights,
except for the provisions of ORS 40.105 and 40.115.
SECTION 11. ORS 137.635 is amended to read:
137.635. (1) When, in the case of a felony described in
subsection (2) of this section, a court sentences a convicted
defendant who has previously been convicted of any felony
designated in subsection (2) of this section, the sentence shall
not be an indeterminate sentence to which the defendant otherwise
would be subject under ORS 137.120, but { - , unless it imposes
a death penalty under ORS 163.105, - } the court shall impose a
determinate sentence, the length of which the court shall
determine, to the custody of the Department of Corrections. Any
mandatory minimum sentence otherwise provided by law shall apply.
The sentence shall not exceed the maximum sentence otherwise
provided by law in such cases. The convicted defendant who is
subject to this section shall not be eligible for probation. The
convicted defendant shall serve the entire sentence imposed by
the court and shall not, during the service of such a sentence,
be eligible for parole or any form of temporary leave from
custody. The person shall not be eligible for any reduction in
sentence pursuant to ORS 421.120 or for any reduction in term of
incarceration pursuant to ORS 421.121.
(2) Felonies to which subsection (1) of this section applies
include and are limited to:
(a) Murder, as defined in ORS 163.115, and any aggravated form
thereof.
(b) Manslaughter in the first degree, as defined in ORS
163.118.
(c) Assault in the first degree, as defined in ORS 163.185.
(d) Kidnapping in the first degree, as defined in ORS 163.235.
(e) Rape in the first degree, as defined in ORS 163.375.
(f) Sodomy in the first degree, as defined in ORS 163.405.
(g) Unlawful sexual penetration in the first degree, as defined
in ORS 163.411.
(h) Burglary in the first degree, as defined in ORS 164.225.
(i) Arson in the first degree, as defined in ORS 164.325.
(j) Robbery in the first degree, as defined in ORS 164.415.
(3) When the court imposes a sentence under this section, the
court shall indicate in the judgment that the defendant is
subject to this section.
SECTION 12. ORS 421.084 is amended to read:
421.084. (1) The Administrator of Correctional Education shall
administer an adult basic skills development program for all
individuals in the custody of the Department of Corrections. The
program shall:
(a) Test individuals for basic reading and mathematics skills
or, for individuals with limited English language proficiency,
English speaking skills. Testing for basic intelligence, learning
disabilities, developmental disabilities and adaptive behavior
skills shall be administered as needed except that the
administrator may accept equivalent test results from other
sources.
(b) Except as provided in subsection (2) of this section, be
mandatory for all individuals testing below a 8.0 grade
equivalency on a standardized reading test approved by the
National Reporting System for Adult Education of the United
States Department of Education and by the Adult Basic Skills
Program of the Department of Community Colleges and Workforce
Development.
(c) Provide progress testing and certification.
(d) Provide strong incentives for entering the program and for
achieving the minimum reading level and, for those individuals
with demonstrated ability, provide incentives for making progress
toward earning a General Educational Development (GED)
certificate.
(e) Maintain records of an individual's achievement in the
program and make those records available to the State Board of
Parole and Post-Prison Supervision.
(2) Testing for basic skills and participation in the adult
basic skills development program are not required for inmates:
(a) Sentenced to or otherwise confined by the department for
less than one year;
(b) Sentenced to life imprisonment without parole;
{ - (c) Sentenced to death; - }
{ - (d) - } { + (c) + } With developmental disabilities; or
{ - (e) - } { + (d) + } Who are specifically exempted by
the Department of Corrections for security or health reasons.
SECTION 13. ORS 135.045 is amended to read:
135.045. (1)(a) If the defendant in a criminal action appears
without counsel at arraignment or thereafter, the court shall
determine whether the defendant wishes to be represented by
counsel.
(b) If the defendant does wish to be represented by counsel,
the court, in accordance with ORS 135.050, shall appoint counsel
to represent the defendant.
(c) If the defendant wishes to waive counsel { - , - }
{ + and + } the court
{ - shall determine whether - } { + determines that + } the
defendant has made a knowing and voluntary waiver of counsel
{ - . - } { + , + } the court shall accept the waiver { - of
counsel if the defendant is not charged with a capital offense.
The court may decline to accept the waiver of counsel if the
defendant is charged with a capital offense - } .
(d) If the court accepts a defendant's waiver of counsel, the
court may allow an attorney to serve as the defendant's legal
advisor and may, in accordance with ORS 135.050, appoint an
attorney as the defendant's legal advisor.
(2) Appointment of counsel, including a legal advisor, under
this section is subject to ORS 135.050, 135.055 and 151.485 to
151.497.
SECTION 14. ORS 136.230 is amended to read:
136.230. (1) If the trial is upon an accusatory instrument in
which one or more of the crimes charged is punishable with
imprisonment in a Department of Corrections institution for life
{ - or is a capital offense - } , both the defendant and the
state are entitled to 12 peremptory challenges, and no more. In
any trial before more than six jurors, both are entitled to six.
In any trial before six jurors, both are entitled to three.
(2) Peremptory challenges shall be taken in writing by secret
ballot as follows:
(a) The defendant may challenge two jurors and the state may
challenge two, and so alternating, the defendant exercising two
challenges and the state two until the peremptory challenges are
exhausted.
(b) After each challenge the panel shall be filled and the
additional juror passed for cause before another peremptory
challenge is exercised. Neither party shall be required to
exercise a peremptory challenge unless the full number of jurors
is in the jury box at the time.
(c) The refusal to challenge by either party in order of
alternation does not prevent the adverse party from exercising
that adverse party's full number of challenges, and such refusal
on the part of a party to exercise a challenge in proper turn
concludes that party as to the jurors once accepted by that
party. If that party's right of peremptory challenge is not
exhausted, that party's further challenges shall be confined, in
that party's proper turn, to such additional jurors as may be
called.
(3) Notwithstanding subsection (2) of this section, the
defendant and the state may stipulate to taking peremptory
challenges orally.
(4) Peremptory challenges are subject to ORCP 57 D(4).
SECTION 15. ORS 138.504 is amended to read:
138.504. (1) If the defendant wishes to waive counsel in the
appeal of a criminal action to the Court of Appeals or on review
of a criminal action by the Supreme Court { - , - }
{ + and + } the court { - shall determine whether - }
{ + determines that + } the defendant has made a knowing and
voluntary waiver of counsel { - . - } { + , + } the court shall
accept the waiver { - of counsel if the defendant is not
charged with a capital offense. The court may decline to accept
the waiver of counsel if the defendant is charged with a capital
offense - } .
(2) If the court accepts a defendant's waiver of counsel, the
court may allow an attorney to serve as the defendant's legal
advisor and, if the defendant is financially eligible for
appointed counsel at state expense, may appoint an attorney as
the defendant's legal advisor.
(3) If the court declines to accept a defendant's waiver of
counsel under subsection (1) of this section, the court shall
give the defendant a reasonable opportunity, as prescribed by
order or rule of the court, to file a brief on the defendant's
own behalf.
SECTION 16. ORS 146.003 is amended to read:
146.003. As used in ORS 146.003 to 146.189 and 146.710 to
146.992, unless the context requires otherwise:
(1) 'Approved laboratory' means a laboratory approved by the
State Medical Examiner as competent to perform the blood sample
analysis required by ORS 146.113 (2).
(2) 'Assistant district medical examiner' means a physician
appointed by the district medical examiner to investigate and
certify deaths within a county or district.
(3) 'Cause of death' means the primary or basic disease process
or injury ending life.
(4) 'Death requiring investigation' means the death of a person
occurring in any one of the circumstances set forth in ORS
146.090.
(5) 'Deputy medical examiner' means a person appointed by the
district medical examiner to assist in the investigation of
deaths within a county.
(6) 'District medical examiner' means a physician appointed by
the State Medical Examiner to investigate and certify deaths
within a county or district, including a Deputy State Medical
Examiner.
(7) 'Law enforcement agency' means a county sheriff's office,
municipal police department, police department established by a
university under ORS 352.383 and the Oregon State Police.
(8) 'Legal intervention' includes { - an execution pursuant
to ORS 137.463, 137.467 and 137.473 and other - } { + the + }
legal use of force resulting in death.
(9) 'Manner of death' means the designation of the probable
mode of production of the cause of death, including natural,
accidental, suicidal, homicidal, legal intervention or
undetermined.
(10) 'Medical examiner' means a physician appointed as provided
by ORS 146.003 to 146.189 to investigate and certify the cause
and manner of deaths requiring investigation, including the State
Medical Examiner.
(11) 'Pathologist' means a physician holding a current license
to practice medicine and surgery and who is eligible for
certification by the American Board of Pathology.
(12) 'Unidentified human remains' does not include human
remains that are unidentified human remains that are part of an
archaeological site or suspected of being Native American and
covered under ORS chapters 97 and 390 and ORS 358.905 to 358.961.
SECTION 17. ORS 163.155 is amended to read:
163.155. (1) When a defendant, who was at least 15 years of age
at the time of committing the murder, is convicted of murdering a
pregnant victim under ORS 163.115 (1)(a) and the defendant knew
that the victim was pregnant, the defendant shall be sentenced to
life imprisonment without the possibility of release or parole or
to life imprisonment. The court shall conduct a sentencing
proceeding to determine whether the defendant shall be sentenced
to life imprisonment without the possibility of release or parole
as described in subsection (4) of this section or to life
imprisonment as described in subsection (5) of this section. If
the defendant waives all rights to a jury sentencing proceeding,
the court shall conduct the sentencing proceeding as the trier of
fact. The procedure for the sentencing proceeding, whether before
a court or a jury, shall follow the procedure of ORS 163.150
(1)(a) { + to (c) + }, as modified by this section.
(2) Following the presentation of evidence and argument under
subsection (1) of this section, the court shall instruct the jury
that the trial court shall sentence the defendant to life
imprisonment without the possibility of release or parole as
described in subsection (4) of this section, unless after
considering all of the evidence submitted, 10 or more members of
the jury find there are sufficient mitigating circumstances to
warrant life imprisonment with the possibility of release or
parole as described in subsection (5) of this section. If 10 or
more members of the jury do not find there are sufficient
mitigating circumstances to warrant life imprisonment with the
possibility of release or parole, the trial court shall sentence
the defendant to life imprisonment without the possibility of
release or parole as described in subsection (4) of this section.
If 10 or more members of the jury find there are sufficient
mitigating circumstances to warrant life imprisonment with the
possibility of release or parole, the trial court shall sentence
the defendant to life imprisonment as described in subsection (5)
of this section.
(3) Nothing in this section precludes the court from sentencing
the defendant to life imprisonment, as described in subsection
(5) of this section, or life imprisonment without the possibility
of release or parole, as described in subsection (4) of this
section, pursuant to a stipulation of sentence or stipulation of
sentencing facts agreed to and offered by both parties if the
defendant waives all rights to a jury sentencing proceeding.
(4) A sentence of life imprisonment without the possibility of
release or parole under this section may not be suspended,
deferred or commuted by any judicial officer, and the State Board
of Parole and Post-Prison Supervision may neither parole the
prisoner nor reduce the period of confinement in any manner
whatsoever. The Department of Corrections or any executive
official may not permit the prisoner to participate in any sort
of release or furlough program.
(5) If the defendant is sentenced to life imprisonment, the
court shall order that the defendant be confined for a minimum of
30 years without possibility of parole, release to post-prison
supervision, release on work release or any form of temporary
leave or employment at a forest or work camp.
(6) At any time after completion of the minimum period of
confinement pursuant to subsection (5) of this section, the
board, upon the petition of a prisoner so confined, shall hold a
hearing to determine if the prisoner is likely to be
rehabilitated within a reasonable period of time. The sole issue
shall be whether the prisoner is likely to be rehabilitated
within a reasonable period of time. The proceeding shall be
conducted in the manner prescribed for a contested case hearing
under ORS chapter 183, except that:
(a) The prisoner has the burden of proving by a preponderance
of the evidence the likelihood of rehabilitation within a
reasonable period of time;
(b) The prisoner has the right, if the prisoner is without
sufficient funds to employ an attorney, to be represented by
legal counsel, appointed by the board, at board expense; and
(c) The prisoner has the right to a subpoena upon a showing of
the general relevance and reasonable scope of the evidence
sought, provided that any subpoena issued on behalf of the
prisoner must be issued by the board pursuant to rules adopted by
the board.
(7) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its members, finds that the prisoner is
capable of rehabilitation and that the terms of the prisoner's
confinement should be changed to life imprisonment with the
possibility of parole, release on post-prison supervision or work
release, it shall enter an order to that effect and the order
shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole, release on
post-prison supervision or work release and may set a release
date. Otherwise the board shall deny the relief sought in the
petition.
(8) Not less than two years after the denial of the relief
sought in a petition under this section, the prisoner may
petition again for a change in the terms of confinement. Further
petitions for a change may be filed at intervals of not less than
two years thereafter.
SECTION 18. ORS 475.188 is amended to read:
475.188. (1) Prescription drug orders may be transmitted by
electronic means from a practitioner authorized to prescribe
drugs directly to the dispensing pharmacist.
(2) All prescription drug orders communicated by way of
electronic transmission shall:
(a) Be transmitted only by an authorized practitioner;
(b) Be transmitted directly to a pharmacist in a pharmacy of
the patient's choice with no intervening person having access to
the prescription drug order;
(c) Specify the prescribing practitioner's telephone number for
verbal confirmation, the time and date of transmission, the
identity of the pharmacy intended to receive the transmission and
all other information required for a prescription by federal or
state law; and
(d) Be traceable to the prescribing practitioner by an
electronic signature or other secure method of validation.
(3) An electronic transmission of a prescription drug order
shall be stored by electronic means or reduced promptly to
writing, filed by the pharmacy and retained in conformity with
the requirements of ORS 475.165.
(4) The dispensing pharmacist shall exercise professional
judgment regarding the accuracy, validity and authenticity of an
electronically transmitted prescription drug order.
(5) All equipment for transmission, storage or receipt of
electronically transmitted prescription drug orders shall be
maintained to protect against unauthorized access.
(6) A pharmacist, pharmacy or pharmacy department shall not
enter into an agreement with a practitioner or health care
facility concerning the provision of any electronic transmission
equipment or apparatus that would adversely affect a patient's
freedom to select the pharmacy or pharmacy department of the
patient's choice.
(7) A pharmacist, pharmacy or pharmacy department shall not
provide any electronic equipment or apparatus to a practitioner
or health care facility for the purpose of providing an incentive
to the practitioner or health care facility to refer patients to
a particular pharmacy or pharmacy department.
(8) There shall be no additional charge to the patient because
the prescription drug order was electronically transmitted.
(9) Nothing in this section shall be construed as authorizing
the electronic transmission of a prescription drug order when a
written prescription is required under ORS 127.815,
{ - 137.473, - } 169.750, 453.025 or 475.185 (1).
SECTION 19. ORS 144.110 is amended to read:
144.110. (1) In any felony case, the court may impose a minimum
term of imprisonment of up to one-half of the sentence it
imposes.
(2) Notwithstanding the provisions of ORS 144.120 and 144.780:
(a) The State Board of Parole and Post-Prison Supervision
{ - shall - } { + may + } not release a prisoner on parole
who has been sentenced under subsection (1) of this section until
the minimum term has been served, except upon affirmative vote of
a majority of the members of the board.
(b) The board { - shall - } { + may + } not release a
prisoner on parole:
(A) Who has been convicted of murder defined as aggravated
murder under the provisions of ORS 163.095, except as provided in
ORS 163.105; or
(B) Who has been convicted of murder under the provisions of
ORS 163.115, except as provided in ORS 163.115 (5)(c) to (f) { +
or 163.155 + }.
SECTION 20. { + If a sentencing court has, before the
effective date of this 2013 Act, imposed a sentence of death that
has not been executed, the court shall, after providing notice to
the defendant, the district attorney and the victim as defined in
ORS 131.007, hold a hearing to vacate the sentence of death.
Notwithstanding any other provision of law, the court shall
sentence the person to life imprisonment without the possibility
of release or parole as described in ORS 163.105 (1)(b). + }
SECTION 21. { + ORS 137.463, 137.464, 137.466, 137.467,
137.473, 137.476, 137.478, 137.482, 138.012 and 138.686 are
repealed. + }
SECTION 22. { + This 2013 Act does not take effect unless the
amendment to the Oregon Constitution proposed by ___ Joint
Resolution ___ (2013) (LC 2488) is approved by the people at the
next regular general election held throughout this state. This
2013 Act takes effect on the effective date of that
constitutional amendment. + }
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