137.090
Considerations in determining aggravation or mitigation. (1) In determining aggravation or
mitigation, the court shall consider:
(a) Any evidence
received during the proceeding;
(b) The
presentence report, where one is available; and
(c) Any other
evidence relevant to aggravation or mitigation that the court finds trustworthy
and reliable.
(2) In
determining mitigation, the court may consider:
(a) Evidence
regarding the defendant’s status as a servicemember as defined in ORS 135.881.
(b) Whether the
defendant committed the crime while under duress, compulsion, direction or
pressure from another person who has:
(A) Committed
acts of domestic violence, as defined in ORS 135.230, against the defendant;
(B) Committed
acts of abuse as a family or household member of the defendant, as those terms
are defined in ORS 107.705, against the defendant; or
(C) Used force,
intimidation, fraud or coercion to cause the defendant to engage, or attempt to
engage, in a commercial sex act.
(3) In
determining aggravation, the court shall consider whether the person was
wearing body armor in the course of and in furtherance of the crime, or to
facilitate the immediate flight therefrom.
(4) When a
witness is so sick or infirm as to be unable to attend a sentencing proceeding,
the deposition of the witness may be taken out of court at such time and place,
and upon such notice to the adverse party, and before such person authorized to
take depositions, as the court directs. [Amended by 1965 c.400 §1; 1973 c.836 §259;
1989 c.790 §10; 2013 c.331 §1; 2017 c.123 §1; 2023 c.288 §1]
Notes of Decisions
Cited in
30
cases (
2 in the last 5 years), 1957–2026 · leading case:
State v. Hammond, 180 P.3d 137 (Or. Ct. App. 2008).
State v. Hammond, 180 P.3d 137 (Or. Ct. App. 2008).
· cites it 36× “585 do not apply in the following situations: "* * * * * "(e) Proceedings to revoke probation, except as required by ORS 137.090. " (Emphasis added.) In turn, ORS 137.”
State v. Guzek, 906 P.2d 272 (Or. 1995).
· cites it 4× “" Under ORS 137.090 (1985), the trial court was permitted, but was not required, to consider the presentence report before sentencing the defendant.”
State Ex Rel. Russell v. Jones, 647 P.2d 904 (Or. 1982).
· cites it 6× “ORS 137.090. Defendant alleges that the presentence investigator, the diagnostic center, "told [him] to report for a psychological interview" as well as for a "general interview.”
State v. Upton, 125 P.3d 713 (Or. 2005).
· cites it 4× “For that proposition, defendant relies on ORS 137.090(1)(c), which requires that a sentencing court, in determinating “aggravation or mitigation,” consider any “evidence relevant to aggravation or mitigation that the court finds trustworthy and reliable.”
Buchea v. Sullivan, 497 P.2d 1169 (Or. 1972).
· cites it 12× “ORS 137.090 then provides as follows: "The circumstances which are alleged to justify aggravation or mitigation of the punishment shall be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend,…”
State v. Brown, 687 P.2d 751 (Or. 1984).
· cites it 2× ““(d) Sentencing, except as required by ORS 137.090. “(e) Proceedings to revoke probation, except as required by ORS 137.”
State v. Guzek, 86 P.3d 1106 (Or. 2004).
· cites it 2× “150(1)(a) provided as follows: "In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence[.]" ORS 163.150(1)(a) (1985). [10] That statute provides that the Oregon Evidence Code does not apply in sentencing proceedings, "except…”
State v. Dumont, 507 A.2d 164 (Me. 1986).
· cites it 2× “22, §§ 973-975 (1981); Or. Rev.Stat. § 137.090 (1983). Some courts, independent of legislation, have similarly barred the use of information offered by either the State or the defendant unless presented in open court.”
State v. Dilts, 39 P.3d 276 (Or. Ct. App. 2002).
“Under ORS 137.090(1), evidence supporting the existence of an aggravating or mitigating factor includes: *242 “(a) Any evidence received during the proceeding; “(b) The presentence report, where one is available; and “(c) Any other evidence relevant to aggravation or mitigation…”
State v. Sawatzky, 96 P.3d 1288 (Or. Ct. App. 2004).
“See ORS 137.090 (sentencing court may consider evidence received during the proceeding, a presentence report, and “[a]ny other evidence relevant to aggravation or mitigation that the court finds trustworthy and reliable”); State v.”
State v. McNeil, 12 P.3d 992 (Or. Ct. App. 2000).
· cites it 3× “150 [aggravated murder proceedings] or as required by ORS 137.090.” ORS 137.090 provides, in part: “(1) In determining aggravation or mitigation, the court shall consider: “(a) Any evidence received during the proceeding; “(b) The presentence report, where one is available; and…”
State v. Shirley, 465 P.2d 743 (Or. Ct. App. 1970).
· cites it 4× “ORS 137.090, as [¿mended in 1965, allows the court to consider á preséhtence report prepared pursuant to ORS 137.”
— Or. Rev. Stat. § 137.090(1) — 2 cases
State v. Dilts, 39 P.3d 276 (Or. Ct. App. 2002).
“Under ORS 137.090(1), evidence supporting the existence of an aggravating or mitigating factor includes: *242 “(a) Any evidence received during the proceeding; “(b) The presentence report, where one is available; and “(c) Any other evidence relevant to aggravation or mitigation…”
— Or. Rev. Stat. § 137.090(1)(c) — 2 cases
State v. Upton, 125 P.3d 713 (Or. 2005).
“For that proposition, defendant relies on ORS 137.090(1)(c), which requires that a sentencing court, in determinating “aggravation or mitigation,” consider any “evidence relevant to aggravation or mitigation that the court finds trustworthy and reliable.”
State v. Hammond, 180 P.3d 137 (Or. Ct. App. 2008).
“585 do not apply in the following situations: "* * * * * "(e) Proceedings to revoke probation, except as required by ORS 137.090. " (Emphasis added.) In turn, ORS 137.”
— Or. Rev. Stat. § 137.090(2) — 2 cases
— Or. Rev. Stat. § 137.090(l)(c) — 2 cases
State v. Hammond, 180 P.3d 137 (Or. Ct. App. 2008).
“585 do not apply in the following situations: "* * * * * "(e) Proceedings to revoke probation, except as required by ORS 137.090. " (Emphasis added.) In turn, ORS 137.”
State v. Upton, 125 P.3d 713 (Or. 2005).
“For that proposition, defendant relies on ORS 137.090(1)(c), which requires that a sentencing court, in determinating “aggravation or mitigation,” consider any “evidence relevant to aggravation or mitigation that the court finds trustworthy and reliable.”
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