ORS 137.079
Presentence report

  • other writings considered in imposing sentence
  • disclosure to parties
  • court’s authority to except parts from disclosure

(1)

A copy of the presentence report and all other written information concerning the defendant that the court considers in the imposition of sentence shall be made available to the district attorney, the defendant or defendant’s counsel at least five judicial days before the sentencing of the defendant. All other written information, when received by the court outside the presence of counsel, shall either be summarized by the court in a memorandum available for inspection or summarized by the court on the record before sentence is imposed.

(2)

The court may except from disclosure parts of the presentence report or other written information described in subsection (1) of this section which are not relevant to a proper sentence, diagnostic opinions which might seriously disrupt a program of rehabilitation if known by the defendant, or sources of information which were obtainable with an expectation of confidentiality.

(3)

If parts of the presentence report or other written information described in subsection (1) of this section are not disclosed under subsection (2) of this section, the court shall inform the parties that information has not been disclosed and shall state for the record the reasons for the court’s action. The action of the court in excepting information shall be reviewable on appeal.

(4)

A defendant who is being sentenced for felonies committed prior to November 1, 1989, may file a written motion to correct the criminal history contained in the presentence report prior to the date of sentencing. At sentencing, the court shall consider defendant’s motion to correct the presentence report and shall correct any factual errors in the criminal history contained in that report. An order allowing or denying a motion made pursuant to this subsection shall not be reviewable on appeal. If corrections are made by the court, only corrected copies of the report shall be provided to individuals or agencies pursuant to ORS 137.077 (Presentence report).

(5)

Intentionally left blank —Ed.

(a)

The provisions of this subsection apply only to a defendant being sentenced for a felony committed on or after November 1, 1989.

(b)

Except as otherwise provided in paragraph (c) of this subsection, the defendant’s criminal history as set forth in the presentence report shall satisfy the state’s burden of proof as to the defendant’s criminal history.

(c)

Prior to the date of sentencing, the defendant shall notify the district attorney and the court in writing of any error in the criminal history as set forth in the presentence report. Except to the extent that any disputed portion is later changed by agreement of the district attorney and defendant with the approval of the court, the state shall have the burden of proving by a preponderance of evidence any disputed part of the defendant’s criminal history. The court shall allow the state reasonable time to produce evidence to meet its burden.

(d)

The court shall correct any error in the criminal history as reflected in the presentence report.

(e)

If corrections to the presentence report are made by the court, only corrected copies of the report shall be provided to individuals or agencies pursuant to ORS 137.077 (Presentence report).

(f)

Except as provided in ORS 138.105 (Appeal by defendant) and 138.115 (Appeal by state), the court’s decision on issues relating to a defendant’s criminal history shall not be reviewable on appeal. [1973 c.836 §261; 1977 c.372 §11; 1983 c.649 §1; 1989 c.408 §2; 1989 c.790 §8; 2017 c.529 §24]

Source: Section 137.079 — Presentence report; other writings considered in imposing sentence; disclosure to parties; court’s authority to except parts from disclosure, https://www.­oregonlegislature.­gov/bills_laws/ors/ors137.­html.

Notes of Decisions

A defendant has a constitutional right to a copy of that part of a presentence report which deals with public information and relates to his prior criminal record. Buchea v. Sullivan, 262 Or 222, 497 P2d 1169 (1972)

Appointment of psychologist to assist defendant in preparing for the sentencing hearing eliminated any need for disclosure of the psychological test data underlying conclusions contained in the presentence report. State v. Eder, 29 Or App 375, 563 P2d 765 (1977)

Where trial court, in sentencing, considered confidential information not contained in presentence report and stated that reasons for nondisclosure were that information was “basically covered” by presentence report and that it was confidential, there was no basis for appellate review and resentencing was required. State v. McCaffrey, 45 Or App 87, 607 P2d 777 (1980)

It was error for trial judge to deny defendant’s request for presentence report and only to make copy of report available in his chambers for defense counsel to look at. State v. Green, 49 Or App 949, 621 P2d 67 (1980)

Absent waiver, there is no acceptable alternative to strict compliance with this section, so despite fact defendant was illiterate and of limited intelligence, reading pre-sentence report to defendant rather than supplying him with a copy was error. State v. Carsner, 289 Or 645, 616 P2d 491 (1980)

Where statement of reason for court not disclosing part of presentence report or other written information was not provided, remand for resentencing was required. State v. Fears, 69 Or App 606, 688 P2d 88 (1984), Sup Ct review denied

It was error for trial court to classify out-of-state conviction as felony conviction for purposes of Sentencing Guidelines when elements of offense did not constitute felony or Class A misdemeanor under current Oregon law, even though offense was classified as felony in other state. State v. Tapp, 110 Or App 1, 821 P2d 1098 (1991)

Review of finding by sentencing court that defendant’s conviction was counseled was decision on issue “relating to a defendant’s criminal history” and not subject to review under this section. State v. Holliday, 110 Or App 426, 824 P2d 1148 (1992), Sup Ct review denied

Sentencing guidelines do not eliminate requirement that if defendant disputes any part of criminal history in presentence investigation report defendant must notify district attorney and court in writing. State v. Delgado, 111 Or App 162, 826 P2d 1014 (1992)

Nonreviewable nature of determination whether criminal history exists does not preclude review under [former] ORS 138.222 of whether consideration of criminal history during sentencing was proper. State v. Leslie, 134 Or App 366, 895 P2d 342 (1995), Sup Ct review denied; State v. Crain, 192 Or App 328, 84 P3d 1092 (2004), Sup Ct review denied

Where defendant challenges inclusion of prior juvenile adjudication in criminal history, defendant may demonstrate adjudication was uncounseled either by affirmative showing defendant was not represented or by showing record is silent on matter. State v. Riggins, 180 Or App 525, 44 P3d 615 (2002)

Where defendant challenges criminal history and demonstrates prior juvenile adjudication was uncounseled, state must establish juvenile and juvenile’s parents were aware of right to counsel and intentionally waived right. State v. Riggins, 180 Or App 525, 44 P3d 615 (2002)

“Criminal history” does not include calculation of criminal history score in presentence report. State v. Torres, 184 Or App 515, 59 P3d 47 (2002)

Where defendant challenges criminal history based on lack of counsel during prior proceeding, unavailability of record for prior proceeding does not allow inference that defendant was unrepresented. State v. Crain, 192 Or App 328, 84 P3d 1092 (2004), Sup Ct review denied

Attorney General Opinions

Authority of Board of Parole to adopt procedures for in camera determination of which materials are subject to disclosure to prisoners with respect to parole determinations, (1978) Vol 38, p 1881

137.010
Duty of court to ascertain and impose punishment
137.012
Suspension of imposition or execution of sentence of person convicted of certain sexual offenses
137.013
Appearance by victim at time of sentencing
137.017
Disposition of fines, costs and security deposits received by court
137.020
Time for pronouncing judgment
137.030
Presence of defendant at pronouncement of judgment
137.040
Bringing defendant in custody to pronouncement of judgment
137.050
Nonattendance or nonappearance of released defendant when attendance required by court
137.060
Form of bench warrant
137.070
Counties to which bench warrant may issue
137.071
Requirements for judgment documents
137.074
Fingerprints of convicted felons and certain misdemeanants required
137.076
Blood or buccal sample and thumbprint of certain convicted defendants required
137.077
Presentence report
137.079
Presentence report
137.080
Consideration of circumstances in aggravation or mitigation of punishment
137.085
Age and physical disability of victim as factors in sentencing
137.090
Considerations in determining aggravation or mitigation
137.100
Defendant as witness in relation to circumstances
137.101
Compensatory fine
137.103
Definitions for ORS 137.101 to 137.109
137.105
Authority of trial court during pendency of appeal
137.106
Restitution to victims
137.107
Authority of court to amend part of judgment relating to restitution
137.108
Restitution when defendant has entered into diversion agreement
137.109
Effect of restitution order on other remedies of victim
137.118
Assignment of judgments for collection of monetary obligation
137.120
Term of sentence
137.121
Maximum consecutive sentences
137.123
Provisions relating to concurrent and consecutive sentences
137.124
Commitment of defendant to Department of Corrections or county
137.126
Definitions for ORS 137.126 to 137.131
137.128
Community service as part of sentence
137.129
Length of community service sentence
137.131
Community service as condition of probation for offense involving graffiti
137.138
Forfeiture of weapons and revocation of hunting license for certain convictions
137.143
All monetary obligations constitute single obligation on part of convicted person
137.145
Definitions for ORS 137.145 to 137.159
137.146
Priorities for application of payments on criminal judgments entered in circuit courts
137.147
Priorities for application of payments on criminal judgments entered in local courts
137.149
Level I obligations in circuit court judgments
137.151
Level I obligations in local court judgments
137.153
Level II obligations in circuit court judgments
137.154
Level II obligations in local court judgments
137.155
Level III obligations in circuit court judgments
137.156
Level III obligations in local court judgments
137.157
Level IV obligations in circuit court judgments
137.158
Level IV obligations in local court judgments
137.159
Level V obligations in circuit court judgments
137.167
Imprisonment when county jail is not suitable for safe confinement
137.170
Entry of judgment in criminal action
137.172
Entry of corrected judgment
137.175
Judgment in criminal action that effects release of defendant
137.183
Interest on judgments
137.210
Taxation of costs against complainant
137.212
Clerk to prepare trial court file
137.218
Joint petition for reconsideration of conviction or sentence
137.221
Vacation of judgment of conviction for prostitution
137.222
Motion for reduction of marijuana conviction offense classification
137.223
Order setting aside judgment of guilty except for insanity
137.225
Order setting aside conviction or record of criminal charge
137.226
Eligibility for order setting aside certain marijuana convictions
137.227
Evaluation after conviction to determine if defendant is alcoholic or drug-dependent person
137.228
Finding that defendant is alcoholic or drug-dependent person
137.229
Duty of Department of Corrections
137.230
Definitions for ORS 137.260
137.260
Political rights restored to persons convicted of felony before August 9, 1961, and subsequently discharged
137.270
Effect of felony conviction on property of defendant
137.275
Effect of felony conviction on civil and political rights of felon
137.281
Withdrawal of rights during term of incarceration
137.285
Retained rights of felon
137.286
Minimum fines for misdemeanors and felonies
137.300
Criminal Fine Account
137.301
Legislative findings
137.310
Authorizing execution of judgment
137.315
Electronic telecommunication of notice of judgment authorized
137.320
Delivery of defendant when committed to Department of Corrections
137.330
Where judgment of imprisonment in county jail is executed
137.333
Exception to ORS 137.330
137.370
Commencement and computation of term of imprisonment in state correctional institution
137.372
Credit for time served as part of probationary sentence
137.375
Release of prisoners whose terms expire on weekends or legal holidays
137.380
Discipline, treatment and employment of prisoners
137.390
Commencement, term and termination of term of imprisonment in county jail
137.440
Return by officer executing judgment
137.450
Enforcement of money judgment in criminal action
137.452
Satisfaction of monetary obligation imposed as part of sentence
137.463
Death warrant hearing
137.464
Administrative assessment of defendant’s mental capacity
137.466
Judicial determination of defendant’s mental capacity
137.467
Delivery of warrant when place of trial changed
137.473
Means of inflicting death
137.476
Assistance by licensed health care professional or nonlicensed medically trained person
137.478
Return of death warrant after execution of sentence of death
137.482
Service of documents on defendant
137.520
Power of committing magistrate to parole and grant temporary release to persons confined in county jail
137.523
Custody of person sentenced to confinement as condition of probation
137.525
Probation for person convicted of crime described in ORS 163.305 to 163.467
137.530
Investigation and report of parole and probation officers
137.532
Probation without entering plea
137.533
Probation without entering judgment of guilt
137.540
Conditions of probation
137.542
Probation conditions related to medical use of cannabis
137.545
Period of probation
137.547
Consolidation of probation violation proceedings
137.551
Revocation of probationary sentences
137.553
Use of citations for probation violations authorized
137.557
Citation
137.560
Copies of certain judgments to be sent to Department of Corrections
137.570
Authority to transfer probationer from one agency to another
137.580
Effect of transfer of probationer from one agency to another
137.590
Appointment of parole and probation officers and assistants
137.592
Policy regarding probation violations
137.593
Duty of corrections agencies to impose structured, intermediate sanctions for probation violations
137.595
Establishing system of sanctions
137.596
Probation violations
137.597
Probationer may consent to imposition of sanctions
137.599
Hearing prior to, or after, imposition of sanctions
137.610
Performance by Department of Corrections staff of duties of parole and probation officers appointed by judge
137.620
Powers of parole and probation officers
137.630
Duties of parole and probation officers
137.633
Earned reduction of supervision period
137.635
Determinate sentences required for certain felony convictions
137.637
Determining length of determinate sentences
137.651
Definitions for ORS 137.654, 137.656 and 137.658
137.654
Oregon Criminal Justice Commission
137.656
Purpose and duties of commission
137.658
Authority of chairperson to create committees within commission
137.661
Agency cooperation with commission
137.662
Oregon Criminal Justice Commission Account
137.667
Amendments to sentencing guidelines
137.669
Guidelines control sentences
137.671
Authority of court to impose sentence outside guidelines
137.672
Aggravating factor sentencing rules relating to gender identity of victim
137.673
Validity of rules
137.674
Use of force data analysis
137.676
Development of method for district attorneys to record and report bias-related crime data
137.678
Analysis of bias-related crime and incident data
137.679
Restorative justice grant program
137.680
Development of specialty court standards
137.681
Innovative Grant Program
137.682
Innovative Grant Fund
137.683
Racial and ethnic impact statements for proposed legislation
137.685
Racial and ethnic impact statements for state measures
137.689
Oregon Crimefighting Act
137.690
Major felony sex crime
137.700
Offenses requiring imposition of mandatory minimum sentences
137.705
Definitions
137.707
Mandatory minimum sentences for certain juvenile offenders waived to adult court
137.709
Application of ORS 137.700 and 137.707
137.712
Exceptions to ORS 137.700 and 137.707
137.717
Presumptive sentences for certain property offenders
137.719
Presumptive life sentence for certain sex offenders upon third conviction
137.725
Presumptive life sentence for certain sex offenders upon second conviction
137.750
Sentencing requirements concerning defendant’s eligibility for certain types of leave, release or programs
137.751
Determination of defendant’s eligibility for release on post-prison supervision under ORS 421.508
137.752
Requirements when defendant committed to custody of county
137.754
Authority of court to modify judgment to comply with ORS 137.750 and 137.752
137.765
Sexually violent dangerous offenders
137.767
Presentence investigation and examination
137.769
Defendant’s right to independent examination
137.771
Resentencing hearing
137.924
Supervisory authority to provide information to agency directors
137.930
Criminal history data provider requirements
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