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Chapter 135 ó Arraignment and Pretrial Provisions

2001 EDITION

ARRAIGNMENT

(Generally)

135.010 Time and place. When the accusatory instrument has been filed, and if the defendant has been arrested, or as soon thereafter as the defendant may be arrested, the defendant shall be arraigned thereon as provided in ORS 135.030 before the court in which it is found. Except for good cause shown or at the request of the defendant, if the defendant is in custody, the arraignment shall be held during the first 36 hours of custody, excluding holidays, Saturdays and Sundays. In all other cases, except as provided for in ORS 133.060, the arraignment shall be held within 96 hours after the arrest. [Amended by 1973 c.836 ß130; 1983 c.344 ß1; 1983 c.661 ß12]

135.020 Scope of proceedings. The arraignment shall be made by the court, or by the clerk or the district attorney under its direction, as provided in ORS 135.030. The arraignment consists of reading the accusatory instrument to the defendant, causing delivery to the defendant of a copy thereof and indorsements thereon, including the list of witnesses indorsed on it or appended thereto if the accusatory instrument is an indictment, asking the defendant how the defendant pleads to the charge. [Amended by 1973 c.836 ß131; 1983 c.344 ß2]

135.030 When presence of defendant is required; appearance by counsel. (1) When the accusatory instrument charges a crime punishable as a felony, the defendant shall appear in person at the arraignment.

(2) When the accusatory instrument charges a crime punishable as a misdemeanor, the defendant may appear in person or by counsel.

(3) As used in this section, a defendant appears "in person" if:

(a) The defendant is physically present before the court; or

(b) The defendant appears before the court by means of simultaneous television transmission allowing the court to observe and communicate with the defendant and the defendant to observe and communicate with the court. However, appearance by simultaneous television transmission shall not be permitted unless the facilities used enable the defendant to consult privately with defense counsel during the proceedings. [Formerly 135.110; 1983 c.344 ß3]

135.035 Bringing in defendant not yet arrested or held to answer. When an accusatory instrument is filed in court, if the defendant has not been arrested and held to answer the charge, unless the defendant voluntarily appears for arraignment, the court shall issue a warrant of arrest as provided in ORS 133.110. [Formerly 135.140]

135.037 Omnibus hearing; when held; subject; ruling of court; counsel required. (1) At any time after the filing of the accusatory instrument in circuit court and before the commencement of trial thereon, the court upon motion of any party shall, and upon its own motion may, order an omnibus hearing.

(2) The purpose of an omnibus hearing shall be to rule on all pretrial motions and requests, including but not limited to the following issues:

(a) Suppression of evidence;

(b) Challenges to identification procedures used by the prosecution;

(c) Challenges to voluntariness of admissions or confession;

(d) Challenges to the accusatory instrument.

(3) The court, at the time of the omnibus hearing, may also consider any matters which will facilitate trial by avoiding unnecessary proof or by simplifying the issues to be tried, or which are otherwise appropriate under the circumstances to facilitate disposition of the proceeding.

(4) At the conclusion of the hearing and prior to trial the court shall prepare and file an order setting forth all rulings of the court on issues raised under subsection (2) of this section. The court shall further prepare and file a memorandum of other matters agreed upon at the hearing. Except in a prosecution of the defendant for perjury or false swearing, or impeachment of the defendant, no admissions made by the defendant or the attorney of the defendant at the hearing shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and the attorney.

(5) This section shall not be applied in any proceeding or at any stage of any proceeding where the defendant is not represented by counsel. [1973 c.550 ß2]

(Counsel; Name Used)

135.040 Right to counsel. If the defendant appears for arraignment without counsel, the defendant shall be informed by the court that it is the right of the defendant to have counsel before being arraigned and shall be asked if the defendant desires the aid of counsel. [Formerly 135.310]

135.045 Court appointment of counsel; waiver of counsel; appointment of legal advisor. (1)(a) If the defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented by counsel.

(b) If the defendant does wish to be represented by counsel, the court, in accordance with ORS 135.050, shall appoint counsel to represent the defendant.

(c) If the defendant wishes to waive counsel, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

(d) If the court accepts a defendantís waiver of counsel, the court may allow an attorney to serve as the defendantís legal advisor and may, in accordance with ORS 135.050, appoint an attorney as the defendantís legal advisor.

(2) Appointment of counsel, including a legal advisor, under this section:

(a) Is subject to ORS 135.050, 135.055 and 151.430 to 151.497; and

(b) Shall be made in compliance with the terms of applicable contracts executed by the State Court Administrator under ORS 151.460. [Formerly 135.320; 1987 c.803 ß13; 1989 c.171 ß16; 1989 c.1053 ß1a; 1991 c.790 ß11; 2001 c.472 ß1]

Note: The amendments to 135.045 by section 24, chapter 962, Oregon Laws 2001, become operative October 1, 2003. See section 15, chapter 962, Oregon Laws 2001. The text that is operative on and after October 1, 2003, is set forth for the userís convenience.

135.045. (1)(a) If the defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented by counsel.

(b) If the defendant does wish to be represented by counsel, the court, in accordance with ORS 135.050, shall appoint counsel to represent the defendant.

(c) If the defendant wishes to waive counsel, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

(d) If the court accepts a defendantís waiver of counsel, the court may allow an attorney to serve as the defendantís legal advisor and may, in accordance with ORS 135.050, appoint an attorney as the defendantís legal advisor.

(2) Appointment of counsel, including a legal advisor, under this section is subject to ORS 135.050, 135.055 and 151.485 to 151.497.

135.050 Eligibility for court-appointed counsel; financial statement; termination; civil liability. (1) Suitable counsel for a defendant shall be appointed by a court if:

(a) The defendant is before a court on a matter described in subsection (4) of this section;

(b) The defendant requests aid of counsel;

(c) The defendant provides to the court a written and verified financial statement; and

(d) It appears to the court that the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendantís dependent family.

(2) Appointed counsel shall not be denied to any defendant merely because the defendantís friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendantís spouse has adequate resources which the court determines should be made available to retain counsel.

(3) The defendantís financial statement under subsection (1) of this section shall include, but not be limited to:

(a) A list of bank accounts in the name of defendant or defendantís spouse, and the balance in each;

(b) A list of defendantís interests in real property and those of defendantís spouse;

(c) A list of automobiles and other personal property of significant value belonging to defendant or defendantís spouse;

(d) A list of debts in the name of defendant or defendantís spouse, and the total of each; and

(e) A record of earnings and other sources of income in the name of defendant or defendantís spouse, and the total of each.

(4) Counsel must be appointed for a defendant who meets the requirements of subsection (1) of this section and who is before a court on any of the following matters:

(a) Charged with a crime.

(b) For a hearing to determine whether an enhanced sentence should be imposed when such proceedings may result in the imposition of a felony sentence.

(c) For extradition proceedings under the provisions of the Uniform Criminal Extradition Act.

(d) For any proceeding concerning an order of probation, including but not limited to the revoking or amending thereof.

(5) Unless otherwise ordered by the court, the appointment of counsel under this section shall continue during all criminal proceedings resulting from the defendantís arrest through acquittal or the imposition of punishment. The court having jurisdiction of the case may substitute one appointed counsel for another at any stage of the proceedings when the interests of justice require such substitution.

(6) If, at any time after the appointment of counsel, the court having jurisdiction of the case finds that the defendant is financially able to obtain counsel, the court may terminate the appointment of counsel. If, at any time during criminal proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom the defendant has retained, the court may appoint counsel as provided in this section.

(7) The court may order the defendant to pay to the State Court Indigent Defense Account in the General Fund in full or in part the administrative costs of determining the eligibility of the defendant for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel under ORS 151.487, 151.505 or 161.665.

(8) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body which has expended moneys for the defendantís legal assistance within two years of judgment if the defendant was not qualified in accordance with subsection (1) of this section for legal assistance.

(9) The civil proceeding shall be subject to the exemptions from execution as provided for by law.

(10) As used in this section unless the context requires otherwise, "counsel" includes a legal advisor appointed under ORS 135.045. [Formerly 133.625; 1981 c.3 ß118; 1985 c.710 ß1; 1989 c.1053 ß1b; 1997 c.761 ß8; 2001 c.472 ß4]

Note: The amendments to 135.050 by section 25, chapter 962, Oregon Laws 2001, become operative October 1, 2003. See section 15, chapter 962, Oregon Laws 2001. The text that is operative on and after October 1, 2003, is set forth for the userís convenience.

135.050. (1) Suitable counsel for a defendant shall be appointed by a municipal, county or justice court if:

(a) The defendant is before a court on a matter described in subsection (5) of this section;

(b) The defendant requests aid of counsel;

(c) The defendant provides to the court a written and verified financial statement; and

(d) It appears to the court that the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendantís dependent family.

(2) Suitable counsel for a defendant shall be appointed by a circuit court if:

(a) The defendant is before the court on a matter described in subsection (5) of this section;

(b) The defendant requests aid of counsel;

(c) The defendant provides to the court a written and verified financial statement; and

(d)(A) The defendant is determined to be financially eligible under ORS 151.485 and the standards established by the Public Defense Services Commission under ORS 151.216; or

(B) The court finds, on the record, substantial and compelling reasons why the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendantís dependent family despite the fact that the defendant does not meet the financial eligibility standards established by the commission.

(3) Appointed counsel shall not be denied to any defendant merely because the defendantís friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendantís spouse has adequate resources which the court determines should be made available to retain counsel.

(4) The defendantís financial statement under subsection (1) or (2) of this section shall include, but not be limited to:

(a) A list of bank accounts in the