and 813.326, if an accusatory instrument or the written notice

163.111 and 813.326, if an accusatory instrument or the written notice described in ORS 136.765 (2) alleges that the defendant has previously been convicted of an offense, the state has the burden of proving the previous conviction unless the defendant stipulates to that fact. The stipulation must:

����� (a) Be in writing;

����� (b) Admit without qualification that the defendant previously was convicted of the offense and that the conviction is valid;

����� (c) Include an express waiver of the defendant�s right to a jury trial on the fact of the previous conviction; and

����� (d) Be filed with the court and served on the district attorney.

����� (2) If the defendant submits a stipulation to a previous conviction that meets the requirements of subsection (1) of this section, the court shall accept the stipulation. Upon acceptance:

����� (a) The stipulation constitutes a judicial admission to the fact of the previous conviction;

����� (b) If the previous conviction is a material element of the offense and the jury finds the defendant guilty upon instruction regarding the balance of the elements of the offense, the court shall enter a judgment of guilt on the charged offense in accordance with the stipulation;

����� (c) Except as provided in subsection (3) of this section, the court may not submit the allegation of the previous conviction to the jury; and

����� (d) Except as provided in subsections (3) and (4) of this section, neither the court nor the state may reveal to the jury the defendant�s previous conviction.

����� (3)(a) A stipulation that is accepted by the court must be presented to the jury if:

����� (A) The statute that defines the charged offense includes as a material element that the defendant previously was convicted of the offense that is the subject of the stipulation and the charged conduct does not constitute a criminal offense except with that element; or

����� (B) The previous conviction is relevant to an enhancement fact that will be submitted to the jury in accordance with ORS 136.765 to 136.785.

����� (b) Except as provided in subsection (4) of this section, when the court presents a stipulation to the jury under this subsection, the court may not admit any other evidence of the previous conviction.

����� (4) The state may offer, and the court may receive and submit to the jury, evidence of the previous offense or conviction for any purpose other than establishing the fact of the previous conviction when the evidence of the previous offense or conviction is otherwise admissible for that purpose. When evidence of the previous offense or conviction has been admitted by the court, the state may comment upon, and the court may give instructions about, the evidence of the previous offense or conviction only to the extent that the comments or instructions relate to the purpose for which the evidence was admitted. [2009 c.180 �2]

����� Note: 136.433 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.

����� 136.434 Challenge to validity of previous conviction. (1) Except as provided in ORS 813.328, if an accusatory instrument or the written notice described in ORS 136.765 (2) alleges that the defendant has previously been convicted of an offense, the defendant may challenge the validity of the previous conviction by filing a notice of the defendant�s intent to do so. The notice must:

����� (a) Identify the previous conviction that the defendant seeks to challenge;

����� (b) Specify the factual and legal basis for the challenge; and

����� (c) Be filed with the court and served on the district attorney within 35 days of the arraignment, or of the defendant�s entry of the initial plea on an accusatory instrument, whichever is sooner, unless a different time is permitted by the court for good cause shown.

����� (2) The validity of the previous conviction shall be determined by the court before trial. At the hearing on the defendant�s challenge:

����� (a) The state has the burden of proving by a preponderance of the evidence that the defendant previously was convicted of the offense; and

����� (b) The defendant has the burden of proving by a preponderance of the evidence that the previous conviction is not valid.

����� (3) If the court determines that the defendant was not previously convicted of the offense that is the subject of the challenge or that the previous conviction is not valid, the court shall enter an order prior to trial that so provides and excludes evidence of the previous conviction. The state may appeal from the order pursuant to ORS 138.045 (1)(d).

����� (4) If the court determines that the defendant previously was convicted of the offense and that the conviction is valid, or if the defendant does not file and serve a notice under subsection (1) of this section, the previous conviction shall be admitted at trial or, if the previous conviction is relevant to an enhancement fact described in ORS 136.770 (4) or 136.773 (1), during the sentencing phase of the proceeding. If the previous conviction is admitted, the defendant may dispute whether the defendant previously was convicted of the alleged offense but may not challenge the validity of the conviction. If the previous conviction is a material element of the charged offense or is an enhancement fact, the state must prove the previous conviction beyond a reasonable doubt unless the defendant stipulates to the fact of the previous conviction in accordance with ORS 136.433.

����� (5) For purposes of this section, a previous conviction is not valid if:

����� (a) In the proceedings resulting in the conviction, the defendant was not represented by counsel and was deprived of the right to counsel in violation of the state or federal Constitution and the defendant is entitled under either Constitution to challenge the validity of the prior conviction in the proceeding before the court.

����� (b) Before the defendant committed the charged offense, the previous conviction was vacated by the court of conviction, reversed or set aside by a court of competent jurisdiction, expunged or pardoned. [2009 c.180 �3; 2017 c.529 �22]

����� Note: 136.434 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.

����� 136.435 Admissibility of evidence from felony defendant not informed as required under ORS 135.070. Evidence obtained directly or indirectly as a result of failure of a magistrate to comply with ORS 135.070 shall not be admissible, over the objection of the defendant, in any court. [Formerly 136.545]

����� 136.437 Use of evidence in prosecution of prostitution offense. (1) If a person contacts an emergency communications system or a law enforcement agency to report the commission of a person felony, any statements or other evidence relating to the crime of prostitution under ORS 167.007 obtained as a result of the person making the report may not be used in the prosecution of the person for prostitution or attempted prostitution.

����� (2) The prohibition on the use of statements or other evidence described in this section does not apply to evidence relating to a criminal offense other than prostitution, or to the prosecution of an offense other than prostitution or attempted prostitution.

����� (3) As used in this section:

����� (a) �Emergency communications system� has the meaning given that term in ORS 403.105.

����� (b) �Person felony� has the meaning given that term in the rules of the Oregon Criminal Justice Commission. [2019 c.179 �1]

����� Note: 136.437 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.

����� 136.440 Testimony of accomplice; corroboration; �accomplice� defined. (1) A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances of the commission.

����� (2) As used in this section, an �accomplice� means a witness in a criminal action who, according to the evidence adduced in the action, is criminally liable for the conduct of the defendant under ORS 161.155 and 161.165, or, if the witness is a juvenile, has committed a delinquent act, which, if committed by an adult, would make the adult criminally liable for the conduct of the defendant. [Formerly