2013 ORS § 136.433¹
Proving previous conviction
  • stipulation
  • presentation to jury

(1) Except as provided in ORS 163.103 (Pleading, proof and stipulation regarding previous conviction element in prosecution for aggravated murder) and 813.326 (Felony driving while under the influence of intoxicants), if an accusatory instrument or the written notice described in ORS 136.765 (Notice to defendant) (2) alleges that the defendant has previously been convicted of an offense, the state has the burden of proving the previous conviction unless the defendant stipulates to that fact. The stipulation must:

(a) Be in writing;

(b) Admit without qualification that the defendant previously was convicted of the offense and that the conviction is valid;

(c) Include an express waiver of the defendants right to a jury trial on the fact of the previous conviction; and

(d) Be filed with the court and served on the district attorney.

(2) If the defendant submits a stipulation to a previous conviction that meets the requirements of subsection (1) of this section, the court shall accept the stipulation. Upon acceptance:

(a) The stipulation constitutes a judicial admission to the fact of the previous conviction;

(b) If the previous conviction is a material element of the offense and the jury finds the defendant guilty upon instruction regarding the balance of the elements of the offense, the court shall enter a judgment of guilt on the charged offense in accordance with the stipulation;

(c) Except as provided in subsection (3) of this section, the court may not submit the allegation of the previous conviction to the jury; and

(d) Except as provided in subsections (3) and (4) of this section, neither the court nor the state may reveal to the jury the defendants previous conviction.

(3)(a) A stipulation that is accepted by the court must be presented to the jury if:

(A) The statute that defines the charged offense includes as a material element that the defendant previously was convicted of the offense that is the subject of the stipulation and the charged conduct does not constitute a criminal offense except with that element; or

(B) The previous conviction is relevant to an enhancement fact that will be submitted to the jury in accordance with ORS 136.765 (Notice to defendant) to 136.785 (Burden of proof).

(b) Except as provided in subsection (4) of this section, when the court presents a stipulation to the jury under this subsection, the court may not admit any other evidence of the previous conviction.

(4) The state may offer, and the court may receive and submit to the jury, evidence of the previous offense or conviction for any purpose other than establishing the fact of the previous conviction when the evidence of the previous offense or conviction is otherwise admissible for that purpose. When evidence of the previous offense or conviction has been admitted by the court, the state may comment upon, and the court may give instructions about, the evidence of the previous offense or conviction only to the extent that the comments or instructions relate to the purpose for which the evidence was admitted. [2009 c.180 §2]

Note: 136.433 (Proving previous conviction) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 136 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.