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Or. Rev. Stat. § 136.040

When presence of defendant is necessary

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      136.040 When presence of defendant is necessary. (1) If the charge is for a misdemeanor, the trial may be had in the absence of the defendant if the defendant appears by counsel; but if it is for a felony, the defendant shall appear in person.

      (2) Notwithstanding the provisions of subsection (1) of this section, if the charge is for a misdemeanor, the trial may be had in the absence of the defendant and defendant’s counsel if the misdemeanor is treated as a violation under ORS 161.566 or 161.568. [Amended by 1973 c.836 §225; 1993 c.533 §3; 1999 c.1051 §123]

Notes of Decisions
Cited in 24 cases (5 in the last 5 years), 1954–2024 · leading case: State v. Walton
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State v. Walton (1991) or · cites it 4× “[15] He argues for the first time, on appeal, that his absence from a pretrial conference violated his constitutional right to be present at every stage of his trial, his rights to counsel, confrontation, and due process, and his rights under ORS 136.040. [16] Defendant was not…”
State v. Kittel (2006) orctapp · cites it 14× “The trial court denied the continuance request, ruling that, because the defendant knew of the time and place of trial, yet had failed to appear, the defendant had waived his right under ORS 136.040 to be present for trial. On appeal, we held that, under ORS 136.”
State v. Lobue (2019) orctapp · cites it 4× “360 (1973) (requiring a defendant to personally appear for the entry of a guilty plea); ORS 136.040 amended by Or Laws 1973, ch 836, § 225 (requiring defendant to personally appear for felony trials); see also ORS 137.”
State v. Harris (1981) or · cites it 6× “The issue is whether defendant’s rights under ORS 136.040 1 were violated when his burglary trial continued in his voluntary absence.”
State v. Menefee (2014) orctapp · cites it 4× “Both Harris and Skillstad are limited to an interpretation of ORS 136.040, an Oregon statute that confers on criminal defendants a statutory right to be present at trial.”
State of Oregon v. Kuhnhausen (1954) or · cites it 4× “" ORS 136.040. This section clearly refers only to personal appearance at the "trial.”
State v. Palacios-Romero (2022) orctapp · cites it 2× “JURY-INSTRUCTIONS DISCUSSION WITHOUT DEFENDANT PRESENT (DAY FIVE) In his second assignment of error, defendant con- tends that the trial court erred by conducting a portion of trial outside his presence and without a valid waiver of his right to be present.”
State v. Cole (1979) or · cites it 2× “303 (1929), that the declaration of a mistrial by the trial court is a part of the trial of a criminal case at which the defendant charged with a felony has a statutory right (under ORS 136.040) to be present, with the result that the presence of the defendant is essential to…”
State v. Shutoff (2014) orctapp · cites it 4× “On March 8, 2011, defendant waived his right to a jury trial. Defendant was not present when his case was called for trial on April 8, 2011.”
State v. Skillstad (2006) orctapp · cites it 11× “The second judge agreed with defendant’s position, stating that ORS 136.040 is clear on its face that the trial may take place only when the defendant personally appears or counsel appears on his or her behalf.”
State v. Wilson (1996) or “4 Specifically, defendant argues that his exclusion from the preliminary orientation violated ORS 136.040, Article I, sections 10, 11, and 20, of the Oregon Constitution, and his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.”
State v. Turner (1989) orctapp · cites it 2× “ORS 136.040 permits the court to conduct a trial in the defendant’s absence if the charge is a misdemeanor and the defendant appears by counsel.”
Show all 24 citing cases →
— Or. Rev. Stat. § 136.040(1) — 8 cases
State v. Kittel (2006) orctapp “The trial court denied the continuance request, ruling that, because the defendant knew of the time and place of trial, yet had failed to appear, the defendant had waived his right under ORS 136.040 to be present for trial. On appeal, we held that, under ORS 136.”
State v. Menefee (2014) orctapp “Both Harris and Skillstad are limited to an interpretation of ORS 136.040, an Oregon statute that confers on criminal defendants a statutory right to be present at trial.”
State v. Skillstad (2006) orctapp “The second judge agreed with defendant’s position, stating that ORS 136.040 is clear on its face that the trial may take place only when the defendant personally appears or counsel appears on his or her behalf.”
State v. Humphrey (2023) orctapp
State v. Shutoff (2014) orctapp “On March 8, 2011, defendant waived his right to a jury trial. Defendant was not present when his case was called for trial on April 8, 2011.”
— Or. Rev. Stat. § 136.040(l) — 1 case
State v. Menefee (2014) orctapp “Both Harris and Skillstad are limited to an interpretation of ORS 136.040, an Oregon statute that confers on criminal defendants a statutory right to be present at trial.”
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