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Or. Rev. Stat. § 136.792

Jury upon remand

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      136.792 Jury upon remand. (1) For the purpose of imposing a new sentence in a case that has been remanded to a trial court that will result in resentencing for which a new sentence has not been imposed prior to July 7, 2005, the court may impanel a new jury to determine the enhancement facts as defined in ORS 136.760. Laws relating to impaneling a jury for a criminal trial apply to impaneling a jury under this section.

      (2) ORS 136.785 (3) does not apply to a case in which the court has impaneled a new jury under this section. In a case with a jury impaneled under this section, an enhancement fact is not proven unless the number of jurors who find that the state has met its burden of proof with regard to the enhancement fact is equal to or greater than the number of jurors that was required to find the defendant guilty of the crime. [2005 c.463 §23]

 

      Note: 136.792 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 136 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

 

      136.810 [Amended by 1973 c.836 §250; renumbered 136.500]

 

      136.820 [Renumbered 136.505]

 

      136.830 [Amended by 1973 c.836 §251; renumbered 136.515]

 

      136.840 [Amended by 1973 c.836 §252; renumbered 136.525]

 

      136.850 [Repealed by 1971 c.565 §17 (136.851 enacted in lieu of 136.850)]

 

      136.851 [1971 c.565 §18 (136.851 enacted in lieu of 136.850); 1973 c.836 §253; renumbered 136.535]

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Notes of Decisions
Cited in 9 cases (4 in the last 5 years), 2009–2026 · leading case: State v. Johnson
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State v. Johnson (2023) orctapp · cites it 5× “792 to find enhancement facts and indicated that the state would seek jury findings of several such facts (includ- ing those that were ultimately found by the jury), derived from the state’s felony sentencing guidelines.20 The state argued that, given the preference for…”
State v. Zolotoff (2015) orctapp · cites it 2× “We concluded, “where a defendant previously has been afforded [the right to jury trial on sentence enhancement facts] and the case is remanded for resentencing, a trial court has discretion under ORS 136.792 *** not to impanel a new jury, but instead to rely on findings made by…”
State v. HOLLINGQUEST (2011) orctapp · cites it 3× “Similarly, ORS 136.792, which was enacted after Blakely was decided in order to provide for the empanelling of sentencing juries after remand of a case, also uses the word “may” in the context of indicating what a sentencing court on remand may do: “For the purpose of imposing a…”
State v. Lafferty (2011) orctapp · cites it 2× “790 and ORS 136.792 pertain to the trial of sentencing enhancement issues after remand.”
State v. Huynh (2021) orctapp “785(3) (requiring an enhancement fact tried to a jury to be found by a number of jurors “equal to or greater than the number of jurors that was required to find the defendant guilty of the crime”); ORS 136.792(2) (same for resentencing). For the reasons set forth in State v.”
State v. Hylton (2009) orctapp · cites it 4× “According to defendant, ORS 136.792 required the trial court to empanel a new jury in this case.”
State v. Bement (2026) orctapp · cites it 6× “760 through ORS 136.792 to find enhancement facts and that, given the pref- erence for construing statutes to be constitutional, ORS 163.”
State v. Johnson (2023) orctapp · cites it 6× “792 to find enhancement facts and indicated that the state would seek jury findings of several such facts (includ- ing those that were ultimately found by the jury), derived from the state’s felony sentencing guidelines.20 The state argued that, given the preference for…”
State v. Lafferty (2011) orctapp · cites it 2× “776, which is central to the state's argument in this case, provides: "When a defendant waives the right to a jury trial on the issue of guilt or innocence, the waiver constitutes a written waiver of the right to a jury trial on all enhancement facts whether related to the…”
— Or. Rev. Stat. § 136.792(1) — 2 cases
State v. Zolotoff (2015) orctapp “We concluded, “where a defendant previously has been afforded [the right to jury trial on sentence enhancement facts] and the case is remanded for resentencing, a trial court has discretion under ORS 136.792 *** not to impanel a new jury, but instead to rely on findings made by…”
State v. Hylton (2009) orctapp “According to defendant, ORS 136.792 required the trial court to empanel a new jury in this case.”
— Or. Rev. Stat. § 136.792(2) — 1 case
State v. Huynh (2021) orctapp “785(3) (requiring an enhancement fact tried to a jury to be found by a number of jurors “equal to or greater than the number of jurors that was required to find the defendant guilty of the crime”); ORS 136.792(2) (same for resentencing). For the reasons set forth in State v.”
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