State v. Ellis

May 27, 1964
Reporters:
, ,
Before:
Perry
*105 PERRY, J.

The defendant was convicted of a felony on April 16,1963. Subsequently, and on June 3,1963, the district attorney filed an ‍​​‌‌​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌​​‌‌‌​‌​‌​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‌​‌‌​‌‌​‌‍information (as provided by ORS 168.055) stating that he had reason to believe the defendant had been previously convicted of prior felonies.

After due notice to the defendant, a hearing was had before the trial court. The defendant stood mute, and, after the ‍​​‌‌​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌​​‌‌‌​‌​‌​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‌​‌‌​‌‌​‌‍introduction of evidence, the trial court found the defendant had been convicted of prior felonies. Thereupon, the trial court set aside the prior sentence imposed for the felony of which the defendant had been convicted on April 16,1963, and sentenced the ‍​​‌‌​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌​​‌‌‌​‌​‌​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‌​‌‌​‌‌​‌‍defendant to a greater term as provided by law.

From the imposition of the greater penalty the defendant appeals.

On this appeal, the defendant’s sole contention is that ORS 168.065 is unconstitutional in that the statute provides for the trial judge to determine whether the ‍​​‌‌​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌​​‌‌‌​‌​‌​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‌​‌‌​‌‌​‌‍defendant has been convicted of prior felonies, and thus the defendant is denied his constitutional right to have a jury trial in this proceeding.

This court carefully considered this same question in State v. Hoffman, 236 Or 98, 385 P2d 741, and held that the ‍​​‌‌​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌​​‌‌‌​‌​‌​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‌​‌‌​‌‌​‌‍statute did not violate a constitutional right of the defendant to a jury trial.

The judgment of the trial court is affirmed.