2007 ORS 137.545¹
Period of probation
  • discharge from probation
  • proceedings in case of violation of conditions

(1) Subject to the limitations in ORS 137.010 (Duty of court to ascertain and impose punishment) and to rules of the Oregon Criminal Justice Commission for felonies committed on or after November 1, 1989:

(a) The period of probation shall be as the court determines and may, in the discretion of the court, be continued or extended.

(b) The court may at any time discharge a person from probation.

(2) At any time during the probation period, the court may issue a warrant and cause a defendant to be arrested for violating any of the conditions of probation. Any parole and probation officer, police officer or other officer with power of arrest may arrest a probationer without a warrant for violating any condition of probation, and a statement by the parole and probation officer or arresting officer setting forth that the probationer has, in the judgment of the parole and probation officer or arresting officer, violated the conditions of probation is sufficient warrant for the detention of the probationer in the county jail until the probationer can be brought before the court or until the parole and probation officer or supervisory personnel impose and the offender agrees to structured, intermediate sanctions in accordance with the rules adopted under ORS 137.595 (Establishing system of sanctions). Disposition shall be made during the first 36 hours in custody, excluding Saturdays, Sundays and holidays, unless later disposition is authorized by supervisory personnel. If authorized by supervisory personnel, the disposition shall take place in no more than five judicial days. If the offender does not consent to structured, intermediate sanctions imposed by the parole and probation officer or supervisory personnel in accordance with the rules adopted under ORS 137.595 (Establishing system of sanctions), the parole and probation officer, as soon as practicable, but within one judicial day, shall report the arrest or detention to the court that imposed the probation. The parole and probation officer shall promptly submit to the court a report showing in what manner the probationer has violated the conditions of probation.

(3) Except for good cause shown or at the request of the probationer, the probationer shall be brought before a magistrate during the first 36 hours of custody, excluding holidays, Saturdays and Sundays. That magistrate, in the exercise of discretion, may order the probationer held pending a violation or revocation hearing or pending transfer to the jurisdiction of another court where the probation was imposed. In lieu of an order that the probationer be held, the magistrate may release the probationer upon the condition that the probationer appear in court at a later date for a probation violation or revocation hearing. If the probationer is being held on an out-of-county warrant, the magistrate may order the probationer released subject to an additional order to the probationer that the probationer report within seven calendar days to the court that imposed the probation.

(4) When a probationer has been sentenced to probation in more than one county and the probationer is being held on an out-of-county warrant for a probation violation, the court may consider consolidation of some or all pending probation violation proceedings pursuant to rules made and orders issued by the Chief Justice of the Supreme Court under ORS 137.547 (Consolidation of probation violation proceedings):

(a) Upon the motion of the district attorney or defense counsel in the county in which the probationer is held; or

(b) Upon the court’s own motion.

(5)(a) For defendants sentenced for felonies committed prior to November 1, 1989, and for any misdemeanor, the court that imposed the probation, after summary hearing, may revoke the probation and:

(A) If the execution of some other part of the sentence has been suspended, the court shall cause the rest of the sentence imposed to be executed.

(B) If no other sentence has been imposed, the court may impose any other sentence which originally could have been imposed.

(b) For defendants sentenced for felonies committed on or after November 1, 1989, the court that imposed the probationary sentence may revoke probation supervision and impose a sanction as provided by rules of the Oregon Criminal Justice Commission.

(6) Except for good cause shown, if the revocation hearing is not conducted within 14 calendar days following the arrest or detention of the probationer, the probationer shall be released from custody.

(7) A defendant who has been previously confined in the county jail as a condition of probation pursuant to ORS 137.540 (Conditions of probation) or as part of a probationary sentence pursuant to the rules of the Oregon Criminal Justice Commission may be given credit for all time thus served in any order or judgment of confinement resulting from revocation of probation.

(8) In the case of any defendant whose sentence has been suspended but who has not been sentenced to probation, the court may issue a warrant and cause the defendant to be arrested and brought before the court at any time within the maximum period for which the defendant might originally have been sentenced. Thereupon the court, after summary hearing, may revoke the suspension of sentence and cause the sentence imposed to be executed.

(9) If a probationer fails to appear or report to a court for further proceedings as required by an order under subsection (3) of this section, the failure to appear may be prosecuted in the county to which the probationer was ordered to appear or report.

(10) The probationer may admit or deny the violation by being physically present at the hearing or by means of simultaneous electronic transmission as described in ORS 131.045 (Appearances by simultaneous electronic transmission).

(11)(a) The victim has the right:

(A) Upon request made within the time period prescribed in the notice required by ORS 147.417 (Victim to be notified of constitutional rights), to be notified by the district attorney of any hearing before the court that may result in the revocation of the defendant’s probation;

(B) To appear personally at the hearing; and

(C) If present, to reasonably express any views relevant to the issues before the court.

(b) Failure of the district attorney to notify the victim under paragraph (a) of this subsection or failure of the victim to appear at the hearing does not affect the validity of the proceeding. [Formerly 137.550; 2003 c.577 §14; 2005 c.264 §4; 2005 c.566 §11]

Notes of Decisions

It is not necessary to revoca­tion that the per­son on proba­tion be convicted of a new crime but only that the trial judge be satisfied that the purposes of proba­tion are not being served or that the terms thereof have been violated. State v. Green, 6 Or App 487, 488 P2d 1196 (1971); State v. Golden, 8 Or App 215, 493 P2d 57 (1972)

Since the grant, denial or revoca­tion of proba­tion is discre­tionary with the trial court, the ques­tion is whether the trial court acted arbitrarily or capriciously. State v. Green, 6 Or App 487, 488 P2d 1196 (1971); State v. Golden, 8 Or App 215, 493 P2d 57 (1972)

Defendant whose sen­tence was suspended could not challenge execu­tion of sen­tence with a claim that the state waited an unreasonable length of time to move for execu­tion, when reason for delay was defendant's self-conceal­ment. State v. Taylor, 16 Or App 269, 517 P2d 1233 (1974)

Defendant's proba­tion may be revoked even though he is acquitted of the charge which forms the basis of his proba­tion revoca­tion. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

Since there is a full record of evidence and pro­ceed­ings on which the court based its decision to revoke proba­tion, the court need not give defendant a written state­ment of evidence upon which its decision was based. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

Proof by a preponderance of the evidence is sufficient in proba­tion revoca­tion pro­ceed­ings. State v. Fortier, 20 Or App 613, 533 P2d 187 (1975), Sup Ct review denied

A court in sen­ten­cing may not increase the original sen­tence, even in light of new facts or changing circumstances. State v. Stewart, 21 Or App 555, 535 P2d 1389 (1975)

A court is without authority to revoke proba­tion for a crime committed during the proba­tionary period when revoca­tion pro­ceed­ings have not been initiated before the proba­tionary period has expired. State v. O'Neal, 24 Or App 423, 545 P2d 910 (1976)

If revoca­tion pro­ceed­ings are properly initiated within the proba­tionary period, a court may retain jurisdic­tion to revoke proba­tion after the period has expired. State v. O'Neal, 24 Or App 423, 545 P2d 910 (1976)

The trial court had authority, after revoking proba­tion, to impose a sen­tence to run consecutive to a sen­tence imposed during proba­tion for a crime committed during proba­tion. State v. Monahan, 29 Or App 791, 564 P2d 1374 (1977); State v. McBride, 103 Or App 642, 798 P2d 728 (1990)

Under this sec­tion, proba­tion violator sen­tenced to penitentiary was entitled to credit on penitentiary sen­tence for good time credits (ORS 169.110 (Time credit for good behavior)) and work time credits (ORS 169.120 (Credit for work)) earned while confined in county jail. Brown v. Cupp, 31 Or App 1237, 572 P2d 1065 (1977)

Apparent legislative purpose of this sec­tion is to harmonize state with county good time statutes. Brown v. Cupp, 31 Or App 1237, 572 P2d 1065 (1977)

District court judge who, without having received sworn complaint, issued arrest warrant for viola­tion of condi­tions of proba­tion was not acting outside jurisdic­tion and was immune from liability for false arrest. Higgins v. Redding, 34 Or App 1029, 580 P2d 580 (1978), Sup Ct review denied

Order revoking proba­tion and reinstating it under same condi­tions was ap­pealable proba­tion revoca­tion rather than modifica­tion. State v. Hovator, 37 Or App 557, 588 P2d 56 (1978)

Require­ment for presen­tence report does not apply to revoca­tion pro­ceed­ing where court causes sen­tence pre­vi­ously imposed to be executed. State v. Gustafson, 38 Or App 437, 590 P2d 733 (1979)

Under this statute, it is not necessary that formal mo­tion to quash evidence be made in order to raise improper search and seizure if, before the court rules on the revoca­tion, defendant makes it known to court that evidence justifying revoca­tion was illegally seized. State v. Nettles, 287 Or 131, 597 P2d 1243 (1979). Distinguished in State ex rel Juv. Dept. v. Rogers, 314 Or 114, 836 P2d 127 (1992)

Where defendant was twice tried and convicted for same of­fense and had had his proba­tion revoked, he could be given longer sen­tence than that imposed following first con­vic­­tion. State v. Holmes, 287 Or 613, 601 P2d 1213 (1979)

Failure to make support pay­ments, to reimburse court for costs of court-appointed attorney and to apprise court in writing of address and employ­ment were sufficient grounds for revoking proba­tion of defendant convicted of sec­ond decree crim­i­nal mis­treat­­ment. State v. Reed, 45 Or App 185, 608 P2d 175 (1980)

Under this sec­tion, where court revoked proba­tion and ordered execu­tion of sen­tence pre­vi­ously imposed, it was without power to modify that sen­tence to make it run consecutively to later imposed sen­tence. Fergelic v. Cupp, 53 Or App 190, 631 P2d 800 (1981), Sup Ct review denied

Where defendant was convicted of guiding without license, placed on proba­tion and, while ap­peal was pending, proba­tion was revoked, though Court of Appeals had jurisdic­tion of case on ap­peal, trial court retained authority to enforce judg­ment and revoke proba­tion any time during proba­tion period. State v. Link, 87 Or App 556, 743 P2d 737 (1987)

Once court has imposed sen­tence and placed defendant on proba­tion it may revoke proba­tion but does not have authority under this sec­tion to amend sen­tence and, accordingly, trial court could not revoke proba­tion and impose new sen­tence to run consecutively to sen­tence for sub­se­quent crime. State v. Haines, 90 Or App 347, 752 P2d 333 (1988)

Where court found that defendant's proba­tion needed to be modified and original proba­tion would expire before defendant could benefit from modifica­tion, trial court did not abuse its discre­tion in extending period of proba­tion. State v. Stanford, 100 Or App 303, 786 P2d 225 (1990)

Where defendant pleaded guilty, argu­ment that trial court lacked authority to revoke its order suspending imposi­tion of sen­tence or to impose any sen­tence failed to raise issue within scope of appellate review. State v. Blaney, 101 Or App 273, 790 P2d 549 (1990)

Authority to order proba­tion is condi­tioned on suspension or execu­tion of sen­tence and failure to meet condi­tion renders original proba­tion order void. State v. Reimers, 102 Or App 192, 793 P2d 1382 (1990), Sup Ct review denied

Sentence, once imposed, cannot be retroactively altered to run consecutively to later sen­tence; former and later sen­tences must run concurrently. State v. McBride, 103 Or App 642, 798 P2d 728 (1990)

Bench warrant meeting require­ments of ORS 137.060 (Form of bench warrant) is sufficient for purposes of this sec­tion. State v. Vaughn, 105 Or App 518, 805 P2d 733 (1991)

Proba­tion of­fi­cer was not entitled to absolute judicial immunity for failure to arrest proba­tioner upon learning of viola­tions of condi­tions of proba­tion. Zavalas v. Dept. of Correc­tions, 106 Or App 444, 809 P2d 1329 (1991)

Discre­tionary immunity under ORS 30.265 (Scope of liability of public body, officers, employees and agents) does not protect proba­tion of­fi­cer from liability for arrest decisions under this sec­tion. Zavalas v. Dept. of Correc­tions, 106 Or App 444, 809 P2d 1329 (1991)

Court has authority to extend proba­tion without finding of viola­tion. State v. Stuve, 111 Or App 197, 826 P2d 24 (1992), Sup Ct review denied

Failure to undertake parole revoca­tion hearing and execu­tion of suspended sen­tence until after defendant completed incarcera­tion period for an­oth­er charge was not prejudicial because there is no right to concurrent sen­tence. State v. Dunn, 123 Or App 288, 859 P2d 1169 (1993), Sup Ct review denied

Arrest authority does not create proba­tion of­fi­cer duty to protect public from crim­i­nal ac­tivity of proba­tion violator. Kim v. Multnomah County, 138 Or App 417, 909 P2d 886 (1996), aff'd 328 Or 140, 970 P2d 631 (1998)

1989 amend­ment making credit for time served as proba­tion condi­tion discre­tionary violates constitu­tional pro­hi­bi­­tion against ex post facto laws where applied to crimes committed before effective date of amend­ment. Haas v. Hathaway, 144 Or App 478, 928 P2d 331 (1996)

Defendant does not have right under United States Constitu­tion to confront witnesses in proba­tion revoca­tion pro­ceed­ing. State v. Gonzalez, 212 Or App 1, 157 P3d 266 (2007)

Completed Cita­tions

Portland v. Olson, 4 Or App 380, 481 P2d 641 (1971), Sup Ct review denied; State v. Morasch, 5 Or App 211, 483 P2d 474 (1971), Sup Ct review denied; State v. Ragghianti, 5 Or App 498, 484 P2d 1125 (1971), Sup Ct review denied

Law Review Cita­tions

11 WLJ 288, 289 (1975)


1 Legislative Counsel Committee, CHAPTER 137—Judgment and Execution; Parole and Probation by the Court, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­137.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 137, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­137ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.