136.773
Enhancement fact related to defendant.
(1) When an enhancement fact relates to the defendant, the court shall submit
the enhancement fact to the jury during the sentencing phase of the criminal
proceeding if the defendant is found guilty of an offense to which the
enhancement fact applies unless the defendant 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) 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 defendant 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 defendant to which the
defendant does not admit.
(4) If two or
more defendants are being tried in the same criminal proceeding, each defendant
shall make the elections required by this section.
(5) Unless the
defendant waives the right to a jury trial on enhancement facts related to the
defendant, the sentencing phase shall be conducted in the trial court before
the jury following a finding of guilt by the jury. If for any reason a juror is
unable to perform the function of a juror, the court shall dismiss the juror
from the sentencing phase and draw the name of one of the alternate jurors. The
alternate juror then becomes a member of the jury for the sentencing phase
notwithstanding the fact that the alternate juror did not deliberate on the
issue of guilt. The court may retain alternate jurors and may allow the
substitution of an alternate juror after the jury has begun deliberations in
accordance with ORS 136.280. [2005 c.463 §4; 2017 c.359 §3]
Note: See note under 136.765.
Notes of Decisions
Cited in
14
cases (
3 in the last 5 years), 2009–2024 · leading case:
State v. Speedis
State v. Speedis (2011)
or · cites it 2×
“770 (governing aggravating factors that “relat[e] to an offense charged in the accusatory instrument”); ORS 136.773 (governing aggravating factors that “relat[e] to the defendant”).”
State v. Engerseth (2013)
orctapp · cites it 7×
“By neglecting to do so, the court violated ORS 136.773.” The state, however, argues that we should not exercise our discretion to correct the error.”
State v. Davilla (2016)
orctapp
“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 jury-trial right.”
State v. Roberts (2009)
orctapp · cites it 2×
“See ORS 136.773. There is no indication in the text of ORS 136.”
State v. Lafferty (2011)
orctapp · cites it 2×
“” Similarly, ORS 136.773 provides that sentence enhancement facts that relate to the defendant rather than to the charged offense will be tried during the sentencing phase, except again, where “the defendant makes a written waiver of the right to a jury trial on the enhancement…”
State v. Fernaays (2014)
orctapp · cites it 10×
“770; ORS 136.773; Or Const, Art I, § 11. As amplified below, (1) although the trial court’s noncompliance with ORS 136.”
State v. Johnson (2023)
orctapp
“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 impose an enhanced sentence.”
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. Alexander (2013)
orctapp
“770 prescribes procedures pertaining to the determination of an enhancement fact that “relates to the offense,” while ORS 136.773 addresses procedures for the determination of an enhancement fact that “relates to the defendant.”
State v. Mayes (2010)
orctapp
“770(1); ORS 136.773; Blakely, 542 US at 303-04 . The premise of defendant’s argument — that the court initially imposed a void “presumptive” sentence — is incorrect.”
State v. Palmer (2024)
orctapp
“To aid in this determination, the Oregon Criminal Justice Commission enumerated a nonexclusive list of aggravating factors, which if found, may constitute substantial and compelling reasons for a depar- ture.”
State v. Kinney (2014)
orctapp
“Engerseth, 255 Or App 765 , 770 n 6, 299 P3d 567 , rev den, 353 Or 868 (2013) (rejecting the defendant’s argument that the holding in Barber required the court to correct the trial court’s *617 error in accepting the defendant’s stipulation to a sentence enhancement fact without…”
— Or. Rev. Stat. § 136.773(1) — 4 cases
State v. Engerseth (2013)
orctapp
“By neglecting to do so, the court violated ORS 136.773.” The state, however, argues that we should not exercise our discretion to correct the error.”
State v. Speedis (2011)
or
“770 (governing aggravating factors that “relat[e] to an offense charged in the accusatory instrument”); ORS 136.773 (governing aggravating factors that “relat[e] to the defendant”).”
State v. Fernaays (2014)
orctapp
“770; ORS 136.773; Or Const, Art I, § 11. As amplified below, (1) although the trial court’s noncompliance with ORS 136.”
State v. Kinney (2014)
orctapp
“Engerseth, 255 Or App 765 , 770 n 6, 299 P3d 567 , rev den, 353 Or 868 (2013) (rejecting the defendant’s argument that the holding in Barber required the court to correct the trial court’s *617 error in accepting the defendant’s stipulation to a sentence enhancement fact without…”
— Or. Rev. Stat. § 136.773(2) — 1 case
State v. Roberts (2009)
orctapp
“See ORS 136.773. There is no indication in the text of ORS 136.”
— Or. Rev. Stat. § 136.773(l)(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…”
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