136.770
Enhancement fact related to offense.
(1) When an enhancement fact relates to an offense charged in the accusatory
instrument, the court shall submit the enhancement fact to the jury during the
trial phase of the criminal proceeding unless the defendant:
(a) Defers trial
of the enhancement fact under subsection (4) of this section; or
(b) Makes a
written waiver of the right to a jury trial on the enhancement fact and:
(A) Admits to the
enhancement fact; or
(B) Elects to
have the enhancement fact tried to the court.
(2) If the
defendant makes the election under subsection (1)(b)(B) of this section and is
found guilty during the trial phase of the criminal proceeding, the enhancement
fact shall be tried during the sentencing phase of the proceeding.
(3) If there is
more than one enhancement fact relating to the offense and the defendant does
not admit to all of them, the defendant shall elect to try to the jury or to
the court all enhancement facts relating to the offense to which the defendant
does not admit.
(4) If the court
finds that trying an enhancement fact relating to the offense during the trial
phase of the criminal proceeding would unfairly prejudice the jury’s verdict on
an underlying offense, the court shall allow the defendant to defer trial of
the enhancement fact to the sentencing phase of the proceeding without waiving
the right to a jury trial on the enhancement fact.
(5) If two or
more defendants are being tried in the same criminal proceeding, each defendant
shall make the elections required by this section. [2005 c.463 §3]
Note: See note under 136.765.
Notes of Decisions
Cited in
20
cases (
6 in the last 5 years), 2009–2026 · leading case:
State v. Speedis
State v. Speedis (2011)
or · cites it 2×
“See ORS 136.770 (governing aggravating factors that “relat[e] to an offense charged in the accusatory instrument”); ORS 136.”
State v. Payne (2019)
orctapp
“In fact, ORS 136.770 expressly provides that the jury may render a decision on guilt, as well as answer sentence enhancement factor questions-a classic example of a general verdict with interrogatories.”
State v. Bray (2016)
orctapp
“Upton, 339 Or 673 , 125 P3d 713 (2005), the defendant challenged ORS 136.770(3), a recently enacted statute under which enhancement facts had to be submitted to the jury.”
State v. Davilla (2016)
orctapp
“See ORS 136.770; ORS 136.773. In sum, the state must provide the defendant with notice of any aggravating factor that it intends to rely on to seek an upward departure sentence and prove that factor beyond a reasonable doubt to a jury unless the defendant waives his or her…”
State v. Lafferty (2011)
orctapp · cites it 3×
“” ORS 136.770 provides that sentencing enhancement facts that relate to the charged offense are to be tried to the jury during the guilt phase unless the court defers trial of such facts to the sentencing phase or the defendant “[mjakes a written waiver of the right to a jury…”
State v. Johnson (2023)
orctapp · cites it 2×
“” The provisions for submitting those issues to a jury—ORS 136.770, ORS 136.773, and ORS 136.792—similarly are crafted in such a way that a trial court may empanel a jury to find enhancement facts in any situation in which jury findings of enhancement facts are required to…”
State v. Huynh (2021)
orctapp
“See ORS 136.770(1) (providing for an enhancement fact related to a charged offense to be tried to the jury, unless the defendant waives the right to a jury trial on the enhancement fact and either admits to the enhancement fact or elects to have it tried to the court).”
State v. Apodaca (2020)
nmctapp
“10 (5)(b) (West 2009); Or. Rev. Stat. Ann. § 136.770 (4) (West 2005); Wash.”
State v. Roberts (2009)
orctapp
“ORS 136.770(2); ORS 136.773(2). Although ORS 136.”
State v. Boitz (2010)
orctapp
“A defendant’s decision whether to elect to have a jury or the court determine the facts alleged in the state’s sentencing enhancement fact notice implicates similar concerns as those confronted by a defendant deciding whether to have a jury or the trial court determine the facts…”
State v. HOLLINGQUEST (2011)
orctapp
“See ORS 136.770 (providing that submission of enhancement fact to jury is required unless the defendant chooses one of those alternatives).”
State v. Fernaays (2014)
orctapp · cites it 8×
“1 ORS 136.770; ORS 136.773; Or Const, Art I, § 11.”
— Or. Rev. Stat. § 136.770(1) — 4 cases
State v. Speedis (2011)
or
“See ORS 136.770 (governing aggravating factors that “relat[e] to an offense charged in the accusatory instrument”); ORS 136.”
State v. Huynh (2021)
orctapp
“See ORS 136.770(1) (providing for an enhancement fact related to a charged offense to be tried to the jury, unless the defendant waives the right to a jury trial on the enhancement fact and either admits to the enhancement fact or elects to have it tried to the court).”
State v. Fernaays (2014)
orctapp
“1 ORS 136.770; ORS 136.773; Or Const, Art I, § 11.”
— Or. Rev. Stat. § 136.770(2) — 1 case
State v. Roberts (2009)
orctapp
“ORS 136.770(2); ORS 136.773(2). Although ORS 136.”
— Or. Rev. Stat. § 136.770(3) — 1 case
State v. Bray (2016)
orctapp
“Upton, 339 Or 673 , 125 P3d 713 (2005), the defendant challenged ORS 136.770(3), a recently enacted statute under which enhancement facts had to be submitted to the jury.”
— Or. Rev. Stat. § 136.770(l)(b)(B) — 1 case
State v. Boitz (2010)
orctapp
“A defendant’s decision whether to elect to have a jury or the court determine the facts alleged in the state’s sentencing enhancement fact notice implicates similar concerns as those confronted by a defendant deciding whether to have a jury or the trial court determine the facts…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.