Chapter 135

 

      135.010

 

      See also annotations under ORS 133.550 in permanent edition.

 

NOTES OF DECISIONS

 

      Where state’s violation of this section was not of constitutional proportions, defendant’s confession which was voluntarily given after legal arrest was not required to be suppressed. State v. Jenks, 43 Or App 221, 602 P2d 681 (1979)

 

      Where defendant was not arraigned within 36 hours as required by this section but was arraigned after appointment of attorney, noncompliance with this section did not result in denial of due process. Barnes v. Cupp, 44 Or App 533, 606 P2d 664 (1980), Sup Ct review denied

 

      Where petitioner appeared in district court on an information charging attempted burglary in first degree and being an ex-convict in possession of concealable firearm, proceeding was not for arraignment as term is used in this section. Shipley v. Cupp, 59 Or App 283, 650 P2d 1032 (1982)

 

      Language of this statute creates liberty interest in freedom from incarceration without speedy pretrial procedures. Oviatt v. Pearce, 954 F2d 1470 (1992)

 

COMPLETED CITATIONS: State v. Riner, 6 Or App 72, 485 P2d 1234 (1971), Sup Ct review denied

 

LAW REVIEW CITATIONS: 53 OLR 286-288 (1974)

 

      135.030

 

      See annotations under ORS 135.110 in permanent edition.

 

      135.035

 

      See annotations under ORS 135.140 in permanent edition.

 

      135.037

 

NOTES OF DECISIONS

 

      Where oral and physical evidence were intermixed at trial and the oral evidence was held inadmissible at trial, the defendant’s failure to move to suppress the physical evidence based on the inadmissibility of the oral evidence before the trial precluded such a motion during trial. State v. Graber, 21 Or App 765, 537 P2d 117 (1975), Sup Ct review denied

 

      The mandatory language of this section does not require hearing and ruling prior to trial on every foreseeable issue concerning admissibility of evidence. State v. Cheshier, 41 Or App 141, 597 P2d 839 (1979), Sup Ct review denied

 

      A purpose of this section is to preserve state’s right of appeal of rulings which are appealable under ORS 138.060, but it is not intended to expand scope of state’s right of appeal. State v. Caruso, 289 Or 315, 613 P2d 752 (1980)

 

      Court may question witness before jury is sworn to determine whether witness will testify at trial, but under ORCP 58B court had no authority to order witness to testify on substance of case until witness is called during normal course of trial. State v. Nefstad, 99 Or App 12, 781 P2d 358 (1989), Sup Ct review denied

 

      Motion to limit evidence may be considered in pretrial omnibus hearing under this section. State v. Troen, 100 Or App 442, 786 P2d 751 (1990), Sup Ct review denied

 

      Defendant was not required to present evidence or argument on issue not raised in state’s initial request for omnibus hearing. State v. Gable, 127 Or App 320, 873 P2d 351 (1994), Sup Ct review denied

 

      Where aggravated murder case is remanded for new penalty-phase proceeding, proceeding is treated as separate trial for purpose of allowing omnibus hearing prior to trial. State ex rel Carlile v. Frost, 326 Or 607, 956 P2d 202 (1998)

 

      135.040 to 135.055

 

NOTES OF DECISIONS

 

      Public Defender lacked standing to prosecute appeal of conviction for driving under influence of intoxicants obtained in absentia and without defendant’s authorization. State v. Lyon, 36 Or App 255, 584 P2d 345 (1978)

 

LAW REVIEW CITATIONS: 11 WLJ 284 (1975)

 

      135.040

 

      See annotations under ORS 135.310 in permanent edition.

 

      135.045

 

      See also annotations under ORS 135.320 in permanent edition.

 

NOTES OF DECISIONS

 

      Where case against defendant was 20 months old and had already been postponed four times and defendant had been advised by four attorneys and thought himself more competent than any of them and waived his right to assistance of counsel, trial court did not err in not appointing another counsel. State v. Pagan, 80 Or App 65, 721 P2d 859 (1986), Sup Ct review denied

 

      Defendant must be permitted to state reasons why counsel should be discharged and new counsel appointed. State v. McCabe, 103 Or App 426, 797 P2d 406 (1990)

 

ATTY. GEN. OPINIONS: Appointment of counsel for defendant, (1974) Vol 36, p 1038

 

      135.050

 

      See also annotations under ORS 133.625 in permanent edition.

 

NOTES OF DECISIONS

 

      The Oregon recoupment scheme does not violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Fuller v. Oregon, 417 US 40, 40 L Ed 2d 642, 94 S Ct 2116 (1973)

 

      Where indigent defendant was provided witness fees to insure testimony of out-of-state psychiatrist who had examined him, denial of his motion for appointment of additional psychiatrist was not violation of constitutional due process. State v. Glover, 33 Or App 553, 577 P2d 91 (1978)

 

      Under this section, interests of justice did not require substitution of another appointed counsel for public defender where defendant rejected public defender because public defender represented all criminal defendants and allegedly would not have time to devote to his case. State v. Reid, 36 Or App 417, 585 P2d 411 (1978)

 

      Under this section, appointment of counsel in extradition cases continues through appellate stages within this state. State ex rel Roby v. Mason, 284 Or 427, 587 P2d 94 (1978)

 

      Where financial statement revealed that defendant had $750 in salable assets, no outstanding debts and no disabilities which would prevent him from obtaining work, it was not error for court to conclude that defendant had sufficient means to obtain counsel without undue hardship. State v. Gordon, 43 Or App 511, 603 P2d 511 (1979), Sup Ct review denied

 

      Where, on hearing of motion for removal of appointed counsel, counsel stated he had researched case, was familiar with the evidence and was pursuing defendant’s best interests, record supported trial court’s finding that it was not in best interest of justice to appoint new counsel under this section. State v. Williams, 43 Or App 949, 607 P2d 740 (1979)

 

      Where trial court was confronted with choice of either continuing trial for two months or replacing defendant’s attorney, both over defendant’s objection, substitution of attorney was required in interest of justice. State v. White, 53 Or App 856, 632 P2d 1363 (1981)

 

      Where case against defendant was 20 months old and had already been postponed four times and defendant had been advised by four attorneys and thought himself more competent than any of them and waived his right to assistance of counsel, trial court did not err in not appointing another counsel. State v. Pagan, 80 Or App 65, 721 P2d 859 (1986), Sup Ct review denied

 

      This section, interpreted in light of Article I, section 11 of Oregon Constitution, requires that indigent defendant who requests counsel have aid of court-appointed counsel in DUII diversion termination hearing. State v. Vest, 88 Or App 101, 744 P2d 288 (1987)

 

      Court erred in denying defendant’s request for counsel solely on basis of defendant’s failure to list his income on affidavit of indigency, and should have made further inquiry based on attached note concerning defendant’s bankruptcy filing. State v. Foster, 95 Or App 452, 769 P2d 790 (1989)

 

      Record was insufficient to support trial court’s denial of court-appointed counsel where only information in record concerning defendant’s financial condition indicated he had no income and that his liabilities exceeded his assets. State v. Freeman, 96 Or App 70, 771 P2d 304 (1989)

 

      Where defendant became dissatisfied with counsel’s strategy, trial court did not abuse discretion by denying defendant’s motion for substitution of counsel. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

 

ATTY. GEN. OPINIONS: Appointment of counsel for defendant, (1974) Vol 36, p 1038

 

LAW REVIEW CITATIONS: 53 OLR 426 (1974); 11 WLJ 288, 289 (1975)

 

      135.055

 

      See also annotations under ORS 135.330 in permanent edition.

 

NOTES OF DECISIONS

 

      Where indigent defendant was provided witness fees to insure testimony of out-of-state psychiatrist who had examined him, denial of his motion for appointment of additional psychiatrist was not violation of constitutional due process. State v. Glover, 33 Or App 553, 577 P2d 91 (1978)

 

      Application for attorney fees on appeal under this section, when available at all, must be made to court that made appointment or conducted original proceedings. State ex rel Roby v. Mason, 284 Or 427, 587 P2d 94 (1978)

 

      Defendant must make adequate showing of need as condition precedent to receipt of investigative expenses under this section, and defendant’s attempted showing did not demonstrate requisite need where claim was that one of eyewitnesses mentioned in police report had moved from former address and defense counsel had been unable to contact two other witnesses mentioned in report. State v. Rovles, 41 Or App 653, 598 P2d 1249 (1979)

 

      Defendant charged with misdemeanor was entitled to subpoena out-of-state witnesses at public expense. State v. Harris, 47 Or App 665, 615 P2d 363 (1980)

 

      Defendant’s motion for advancement of funds to subpoena out-of-state witnesses under this section was sufficient to raise issue of entitlement to subpoenas under ORS 136.627. State v. Harris, 47 Or App 665, 615 P2d 363 (1980)

 

      The statute does not, on its face, distinguish between convicted and acquitted defendants and thus a defendant who is acquitted may be required to pay all or part of the costs incurred by the county for her appointed counsel. State v. Arms, 60 Or App 400, 653 P2d 1004 (1982), Sup Ct review denied

 

      This section unconstitutionally chills an indigent defendant’s Sixth Amendment right to counsel in allowing judgment against an indigent defendant to pay costs of court-appointed counsel with no procedure to insure defendant is able to repay without substantial hardship. Fitch v. Belshaw, 581 F Supp 273 (1984)

 

      Trial court did not abuse its discretion in denying defendant’s motion for investigative expenses for expert to testify on effect on breath test of taking DMSO, because defendant did not, as required by this section, convince court that expense was necessary to prepare and present adequate defense. State v. Underwood, 91 Or App 668, 756 P2d 72 (1988), Sup Ct review denied

 

      Where case involved complex medical issues beyond competence of defendant’s counsel and medical expert was vital for adequate preparation for trial, trial court abused its discretion in denying defendant’s request for appointment of expert medical witness. State v. Gleason, 100 Or App 236, 785 P2d 376 (1990)

 

      Where defendant requested expert witness fees under this section, and affidavit reflected that expert would perform four hours of service for which reasonable charge would be $60 per hour, requesting “minimum” fee of $1,000 for expert was unreasonable as matter of law. State v. Gage, 106 Or App 153, 806 P2d 1159 (1991)

 

      Trial court did not abuse its discretion in finding that pretrial public opinion poll to gauge extent of pretrial publicity was not necessary and proper in preparation of case. State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

 

      Trial court reasonably denied defendant’s request for expenses of out-of-state “mitigation investigator” when defendant provided limited justification and trial court approved defendant’s other requests for investigators and expert witness fees. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

 

      Prohibition against disclosure of defense counsel expenses to district attorney prior to conclusion of “case” remains in effect until conclusion of appeal or of proceedings on remand. State v. Cunningham, 161 Or App 345, 985 P2d 827 (1999)

 

ATTY. GEN. OPINIONS: Court adoption of standard fee schedules for attorneys appointed to represent indigent defendants, (1980) Vol 40, p 492; County contract with attorneys for legal defense of indigents at less than $30.00 per hour, (1981) Vol 41, p 331

 

      135.060

 

      See annotations under ORS 135.340 in permanent edition.

 

      135.065

 

      See annotations under ORS 135.350 in permanent edition.

 

      135.070 to 135.185

 

NOTES OF DECISIONS

 

      Under Oregon Constitution, person may be charged with felony either by grand jury indictment or by district attorney information after showing of probable cause at preliminary hearing, and it is within district attorney’s discretion to decide which procedure to use so long as exercise thereof complies with Equality of Privileges Clause of Oregon Constitution. State v. Eells, 72 Or App 492, 696 P2d 564 (1985), Sup Ct review denied

 

      Where defendant is initially charged by information, but later indicted, defendant does not retain right to preliminary hearing unless use of indictment was for improper purpose. State v. Marsh, 132 Or App 416, 888 P2d 580 (1995)

 

      135.070

 

      See annotations under ORS 133.610 in permanent edition.

 

      135.075

 

      See annotations under ORS 133.620 in permanent edition.

 

      135.085

 

      See annotations under ORS 133.660 in permanent edition.

 

      135.090

 

      See annotations under ORS 133.670 in permanent edition.

 

      135.095

 

      See annotations under ORS 133.680 in permanent edition.

 

      135.100

 

      See annotations under ORS 133.690 in permanent edition.

 

      135.105

 

      See also annotations under ORS 133.700 in permanent edition.

 

LAW REVIEW CITATIONS: 13 WLJ 32 (1976); 28 WLR 127 (1991)

 

      135.175

 

      See also annotations under ORS 133.810 in permanent edition.

 

NOTES OF DECISIONS

 

      Purpose of preliminary hearing is to determine whether there is probable cause to believe defendant committed crime. Barnes v. Cupp, 44 Or App 533, 606 P2d 664 (1980), Sup Ct review denied

 

      135.185

 

      See also annotations under ORS 133.820 in permanent edition.

 

LAW REVIEW CITATIONS: 19 WLR 347 (1983)

 

      135.195

 

      See annotations under ORS 133.830 in permanent edition.

 

      135.215

 

NOTES OF DECISIONS

 

      It is legislative policy that this section applies to pretrial detention of prisoner committed by grand jury indictment without preliminary hearing. Cleveland v. Goin, 299 Or 435, 703 P2d 204 (1985)

 

      135.225

 

      See annotations under ORS 133.860 in permanent edition.

 

      135.230 to 135.290

 

      See also annotations under ORS 135.190 in permanent edition.

 

NOTES OF DECISIONS

 

      Enactment of these sections did not deprive bail bondsmen of their right to engage in the bail bond business, and did not violate the provisions of the Oregon or United States Constitutions. Burton v. Tomlinson, 19 Or App 247, 527 P2d 123 (1974)

 

      The pretrial release provisions of ORS 135.230 to 135.290 do not violate Art. I, §14 of the Oregon Constitution. Burton v. Tomlinson, 19 Or App 247, 527 P2d 123 (1974)

 

      No one may be released from custody without executing and filing release agreement with clerk of court. Knutson v. Cupp, 287 Or 489, 601 P2d 129 (1979)

 

ATTY. GEN. OPINIONS: Security release deposits as bail, (1979) Vol 40, p 139

 

LAW REVIEW CITATIONS: 53 OLR 273-337 (1974); 66 OLR 661 (1987)

 

      135.230

 

      See also annotations under ORS 140.010 in permanent edition.

 

NOTES OF DECISIONS

 

      In habeas corpus proceeding, considering seriousness of charges, Unlawful Possession of a Controlled Substance ([former] ORS 475.992) and Conspiracy to Deliver a Controlled Substance (ORS 161.450 and [former] ORS 475.992), plaintiff’s lack of stable employment, personal relationships or strong ties to the community together with his admitted association with drug trafficking, required imposition of security for release. Liberman v. Burks, 293 Or 457, 650 P2d 83 (1982)

 

      In habeas corpus proceeding, where charges against plaintiff were severe and likely to result in significant jail term if conviction resulted and plaintiff’s ties to community were minimal and where court determined that plaintiff would be under enormous pressure to flee if released, security amount in excess of $200,000 was not excessive. Gillmore v. Pearce, 302 Or 572, 731 P2d 1039 (1987)

 

      For purposes of determining whether persons are family or household members, “cohabitating” means persons live in same residence in relationship similar to spousal  relationship. State ex rel Juvenile Department v. C.M.C., 243 Or App 335, 259 P3d 938 (2011)

 

LAW REVIEW CITATIONS: 53 OLR 275, 280, 283, 293-295, 316, 326 (1974)

 

      135.235

 

      See also annotations under ORS 140.050 in permanent edition.

 

NOTES OF DECISIONS

 

      Release assistance deputy may execute release agreement for the court if presiding judge delegates that authority to release assistance officer and appoints release assistance deputy. State v. Collins, 66 Or App 293, 672 P2d 1388 (1983), Sup Ct review denied

 

LAW REVIEW CITATIONS: 53 OLR 290, 291 (1974)

 

      135.240

 

      See also annotations under ORS 140.020 and 140.030 in permanent edition.

 

NOTES OF DECISIONS

 

      Where record supported trial court’s finding that evidence of accused’s guilt was strong and trial court’s conclusion that she was not entitled to release, Supreme Court would not use writ of habeas corpus to look to reasons behind trial court order. Haynes v. Burks, 290 Or 75, 619 P2d 632 (1980)

 

      Requirement that release be denied absent clear and convincing evidence that defendant will not commit new crimes while on release violates right to bail under section 14, Article I of Oregon Constitution. State v. Sutherland, 329 Or 359, 987 P2d 501 (1999)

 

      Defendant has right to hearing to challenge propriety of applying statutory $50,000 security amount. State v. Sutherland, 329 Or 359, 987 P2d 501 (1999)

 

      In demonstrating to court that proof of murder defendant’s guilt is evident or presumption of guilt is strong, state may rely on evidence that would not be admissible at trial. Rico-Villalobos v. Guisto, 339 Or 197, 118 P3d 246 (2005)

 

LAW REVIEW CITATIONS: 51 OLR 652, 662 (1972)

 

      135.245

 

      See also annotations under ORS 140.030, 140.040, 140.050 and 140.150 in permanent edition.

 

NOTES OF DECISIONS

 

      In habeas corpus proceeding, where charges against plaintiff were severe and likely to result in significant jail term if conviction resulted and plaintiff’s ties to community were minimal and where court determined that plaintiff would be under enormous pressure to flee if released, security amount in excess of $200,000 was not excessive. Gillmore v. Pearce, 302 Or 572, 731 P2d 1039 (1987)

 

LAW REVIEW CITATIONS: 51 OLR 652, 662 (1972); 53 OLR 275, 279, 283, 286, 300-302, 304, 307, 309 (1974)

 

      135.250 to 135.265

 

      See annotations under ORS 140.100 in permanent edition.

 

      135.250

 

      See also annotations under ORS 140.160 in permanent edition.

 

NOTES OF DECISIONS

 

      Defendant who left courtroom after sentencing, while waiting to be taken into custody, and who did not return, violated statutory general conditions of release agreement. State v. Johnson, 66 Or App 123, 672 P2d 1249 (1983)

 

      “Discharged” refers to defendant’s discharge from custody upon dismissal of case. State v. Tally, 184 Or App 715, 57 P3d 592 (2002)

 

LAW REVIEW CITATIONS: 53 OLR 296-299 (1974)

 

      135.255

 

NOTES OF DECISIONS

 

      Where, under release agreement, defendant agreed to appear and answer charges in circuit court on dates and times “to be set” and voluntarily failed to appear on last day of trial, his violation of release agreement was not excused by his presence on other days of trial. State v. Phillips, 84 Or App 316, 734 P2d 4 (1987), Sup Ct review denied

 

LAW REVIEW CITATIONS: 53 OLR 275, 294, 295, 326 (1974)

 

      135.260

 

LAW REVIEW CITATIONS: 53 OLR 275, 302, 303 (1974)

 

      135.265

 

      See also annotations under ORS 140.110, 140.120, 140.130, 140.140, 140.150, 140.160, 140.310 and 140.320 in permanent edition.

 

NOTES OF DECISIONS

 

      Deposit of document denoted “Personal Surety Bond,” wherein surety undertook payment of $50,000 if defendant failed to make appearance as required, failed to constitute deposit with clerk of court of any property as required by this section. Knutson v. Cupp, 287 Or 489, 601 P2d 129 (1979)

 

      Where defendant convicted of assault was ordered to make restitution and pay costs, it was within court’s discretion under this section to retain defendant’s security deposit for payment of judgment. State v. Grant, 44 Or App 671, 606 P2d 1166 (1980)

 

      Security deposit provided by third party is regarded as belonging to defendant and may be withheld to pay obligations of defendant. State v. Grant, 44 Or App 671, 606 P2d 1166 (1980)

 

      Trial court did not exceed statutory authority by imposing conditions on “security release agreement” that required defendant not to possess or consume alcoholic beverages and to report to Release Assistance Officer when directed so to do. Sexson v. Merten, 291 Or 441, 631 P2d 1367 (1981)

 

      In habeas corpus proceeding where plaintiff had been charged with serious crimes, Unlawful Possession of a Controlled Substance ([former] ORS 475.992) and Conspiracy to Deliver a Controlled Substance (ORS 161.450 and [former] ORS 475.992), and facts supported conclusion that security release should have been imposed, where plaintiff had had no prior convictions, had cooperated with police, charges were for nonviolent crimes and there was no evidence he had personal possession of large amounts of drugs or that he had substantial assets, imposition of three million dollar security amount was excessive. Liberman v. Burks, 293 Or 457, 650 P2d 83 (1982)

 

      Writ of mandamus issued where defendant judge refused to release relator on personal recognizance or amount less than $200,000 because of concern over relator’s mental condition and judge had expressed finding that he had no concern that relator would not appear if she were released. State ex rel Lowrey v. Merryman, 296 Or 254, 674 P2d 1173 (1984)

 

      There is no authority for magistrate who has determined security amount to order that prior to release hearing be held as to source of money deposited for security. Cooper v. Burks, 299 Or 449, 702 P2d 1107 (1985)

 

      Security deposit may be withheld to pay obligations of defendant unrelated to matter for which security was given. State v. Baker, 165 Or App 565, 998 P2d 700 (2000), Sup Ct review denied

 

LAW REVIEW CITATIONS: 53 OLR 275, 295, 311-318 (1974)

 

      135.270

 

      See also annotations under ORS 140.310 and 140.320 in permanent edition.

 

LAW REVIEW CITATIONS: 53 OLR 309-311 (1974)

 

      135.280

 

      See also annotations under ORS 135.130 and 140.410 to 140.670 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 140.610)

 

      When a criminal defendant, free on bail, is convicted and imprisoned in a foreign state and does not appear before the Oregon court at the time appointed, forfeiture of bail is not improper as a matter of law. Umatilla County v. Resolute Ins. Co., 8 Or App 318, 493 P2d 731 (1972), Sup Ct review denied

 

 

LAW REVIEW CITATIONS

 

In general

      53 OLR 311, 312, 319, 321, 322 (1974)

 

      135.285

 

NOTES OF DECISIONS

 

      Release pending appeal is discretionary. State ex rel O’Neal v. Pearce, 78 Or App 317, 717 P2d 154 (1986)

 

      Trial court has authority and responsibility for deciding whether defendant should be released pending appeal. State v. Wimber, 108 Or App 1, 814 P2d 169 (1991)

 

LAW REVIEW CITATIONS: 53 OLR 292, 293, 319, 323-325 (1974)

 

      135.290

 

LAW REVIEW CITATIONS: 53 OLR 304 (1974)

 

      135.295

 

ATTY. GEN. OPINIONS: Eligibility of accused traffic offenders for release on own recognizance, (1976) Vol 37, p 1037

 

      135.305

 

      See annotations under ORS 135.420 in permanent edition.

 

      135.315

 

      See annotations under ORS 135.430 in permanent edition.

 

      135.335

 

      See also annotations under ORS 135.820 in permanent edition.

 

NOTES OF DECISIONS

 

      Harmless error analysis is inappropriate where defendant has entered conditional plea. State v. Dinsmore, 182 Or App 505, 49 P3d 830 (2002)

 

      Withdrawal of plea following successful appeal does not authorize court to reinstate charges dismissed as part of plea agreement. State v. Dinsmore, 200 Or App 432, 116 P3d 226 (2005), aff’d 342 Or 1, 147 P3d 1146 (2006)

 

      Because conditional plea might embody interrelated concessions, defendant may withdraw entire plea where premise underlying one part of plea is found not to be valid. State v. Tannehill, 341 Or 205, 141 P3d 584 (2006)

 

COMPLETED CITATIONS: State v. Miller, 5 Or App 501, 484 P2d 1132 (1971), Sup Ct review denied

 

LAW REVIEW CITATIONS: 11 WLJ 181, 182 (1975)

 

      135.355

 

      See annotations under ORS 135.830 in permanent edition.

 

      135.360

 

      See also annotations under ORS 135.840 in permanent edition.

 

NOTES OF DECISIONS

 

      In Oregon there is a constitutional right to be advised of the basic legal consequences of a guilty plea. Jones v. Cupp, 7 Or App 415, 490 P2d 1038 (1971), Sup Ct review denied

 

      Pleading guilty without being informed as to parole ineligibility raises no constitutional issue. Jones v. Cupp, 7 Or App 415, 490 P2d 1038 (1971), Sup Ct review denied

 

      The standard for determining the validity of a guilty plea is whether the plea is entered understandingly and voluntarily. Raisley v. Sullivan, 8 Or App 332, 493 P2d 745 (1972), Sup Ct review denied

 

      Record of criminal proceeding in which defendant enters guilty plea must contain an affirmative showing of the voluntariness of the plea. Raisley v. Sullivan, 8 Or App 332, 493 P2d 745 (1972), Sup Ct review denied

 

      135.365

 

      See also annotations under ORS 135.850 in permanent edition.

 

NOTES OF DECISIONS

 

      Guilty or no contest plea may be withdrawn only by defendant and not by state. State v. Heisser, 232 Or App 320, 222 P3d 719 (2009), aff’d 350 Or 12, 249 P3d 113 (2011)

 

      135.370

 

      See annotations under ORS 135.860 in permanent edition.

 

      135.380

 

      See also annotations under ORS 135.380 and 135.410 in permanent edition.

 

NOTES OF DECISIONS

 

      Where petitioner appeared in district court on basis of information charging felonies, proceeding was not for arraignment as term is used in ORS 135.010 and acceptance by circuit court of petitioner’s guilty plea without assistance of counsel at time of actual arraignment violated this section. Shipley v. Cupp, 59 Or App 283, 650 P2d 1032 (1982)

 

      135.385

 

NOTES OF DECISIONS

 

      Failure to advise defendant that conviction could result in deportation or exclusion is harmless error where defendant 1) was represented by counsel, entered plea as result of plea agreement and did not raise issue at trial; or 2) appears in record of case not to be alien. State v. Collins, 51 Or App 651, 626 P2d 929 (1981); State v. Vickroy, 51 Or App 659, 626 P2d 932 (1981); State v. Frizell, 51 Or App 763, 627 P2d 21 (1981); Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

 

      Where defendant has prior criminal history that would expose alien to deportation or exclusion, failure to instruct that deportation or exclusion is possible consequence of guilty plea by alien defendant is harmless error. State v. Frizell, 51 Or App 763, 627 P2d 21 (1981)

 

      Court is not required to advise of collateral civil consequences of guilty plea, such as mandatory loss of driver license. Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

 

      Imposition of sentence not including jail time does not excuse failure to advise defendant of maximum possible sentence. Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

 

      This section requires court to address defendant personally to determine understanding of nature of charge, and statement to all in court room that, “the rest of you in custody should listen carefully because these rights will apply to you as well...” and making no mention of consequences of “no contest” plea fell short of statutory requirement. State v. Dawson, 57 Or App 420, 644 P2d 665 (1982)

 

      Where noncitizen defendant has already been informed that conviction may result in deportation, court is not required to orally inform defendant of possibility before accepting guilty plea. Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985)

 

      This section was intended to lead trial court through catechism that would insure that defendant’s waiver of constitutional rights would be valid and supply basis for constitutionally valid plea of guilty. Stelts v. State, 299 Or 252, 701 P2d 1047 (1985)

 

      Where juvenile is charged with and admits to act that if committed by adult would be crime resulting in possible confinement for five years and court’s advice is insufficient regarding nature of charge and consequences of admission, child cannot be deemed to have made knowing waiver and juvenile court erred in not setting admission aside. State ex rel Juv. Dept. v. Clements, 95 Or App 640, 770 P2d 937 (1989)

 

      135.395

 

NOTES OF DECISIONS

 

      Trial court’s failure to comply with this section did not constitute basis for post-conviction relief under ORS 138.530. Dockery v. Maass, 99 Or App 219, 781 P2d 1230 (1989), Sup Ct review denied

 

      “Factual basis for the plea” refers to facts regarding whether defendant committed crime to which defendant pleads, not facts regarding plea process. State v. Heisser, 232 Or App 320, 222 P3d 719 (2009), aff’d 350 Or 12, 249 P3d 113 (2011)

 

      135.405

 

NOTES OF DECISIONS

 

      District Attorney was without authority under this section to promise in plea negotiations that Board of Parole would treat crime as Subcategory 2 murder rather than Subcategory 1 murder. Rise v. Bd. of Parole, 304 Or 385, 745 P2d 1210 (1987)

 

      Where prosecutor did not offer defendant same plea agreement as co-defendant and defendant was convicted for murder and robbery in first degree, legislative history of this statute demonstrates that district attorneys are not mandated to offer equal plea agreement opportunities to similarly situated defendants. State v. Buchholz, 97 Or App 221, 775 P2d 896 (1989) aff’d 309 Or 442, 788 P2d 998 (1990)

 

      Where prosecutor improperly allowed victim’s parents’ wishes to control his decision not to enter into plea agreement and record did not reveal what prosecutor independently would have decided, case remanded to trial court for evidentiary hearing to determine how prosecutor would have exercised his judgment and discretion on basis of proper criteria and facts that existed at time he declined to enter into plea agreement. State v. McDonnell, 310 Or 98, 794 P2d 780 (1990); 313 Or 478, 837 P2d 941 (1992)

 

      Record reflected ample justification for prosecutor to treat defendant differently than other individual with whom prosecutor negotiated plea agreement, considering defendant’s role in commission of murders. State v. Guzek, 310 Or 299, 797 P2d 1031 (1990)

 

      Defendant and codefendant were not “similarly situated” when defendant personally committed murders, defendant was charged with aggravated murder while codefendant was charged with felony murder, defendant had extensive criminal record but codefendant did not and state had number of witnesses who would testify about character and propensity of defendant but found no witness who would testify similarly about codefendant. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

 

LAW REVIEW CITATIONS: 74 OLR 1365 (1995)

 

      135.407

 

NOTES OF DECISIONS

 

      Although defendant pleaded guilty to drug charges and was sentenced according to guidelines classification for scheme and network convictions and, after plea, scheme and network provisions were held unconstitutional, to allow review of defendant’s sentence would nullify prohibition of [former] ORS 138.222 against review of sentence imposed pursuant to plea agreement. State v. Rathbone I, 110 Or App 414, 823 P2d 430 (1991), Sup Ct review denied

 

 

      135.415

 

NOTES OF DECISIONS

 

      Where district attorney adhered to standards expressed in this section, Freeland requirement that district attorney adhere “to sufficiently consistent standards to represent coherent, systematic policy” was met and defendant has not established predicate for alleged constitutional violation. State v. Buchholz, 309 Or 442, 788 P2d 998 (1990)

 

      Where prosecutor improperly allowed victim’s parents’ wishes to control his decision not to enter into plea agreement and record did not reveal what prosecutor independently would have decided, case remanded to trial court for evidentiary hearing to determine how prosecutor would have exercised his judgment and discretion on basis of proper criteria and facts that existed at time he declined to enter into plea agreement. State v. McDonnell, 310 Or 98, 794 P2d 780 (1990); 313 Or 478, 837 P2d 941 (1992)

 

      Record reflected ample justification for prosecutor to treat defendant differently than other individual with whom prosecutor negotiated plea agreement, considering defendant’s role in commission of murders. State v. Guzek, 310 Or 299, 797 P2d 1031 (1990)

 

      135.425

 

NOTES OF DECISIONS

 

      This section requires criminal defense attorney prior to guilty plea to disclose consequences of guilty plea and conviction, including, in case of non-citizen client, possibility of deportation. Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985)

 

      Where, under applicable immigration law, criminal conviction will not result in possibility of deportation, counsel is not required to advise alien client of such possibility prior to entry of guilty plea, nor to request that court make recommendation against deportation. Lyons v. Pearce, 298 Or 569, 694 P2d 978 (1985)

 

      135.432

 

NOTES OF DECISIONS

 

      Petitioner failed to demonstrate that trial counsel’s failure to get information under this section prejudiced petitioner because petitioner did not offer evidence that he would have withdrawn guilty plea in response to information he could have obtained under this section. Trujillo v. Maass, 312 Or 431, 822 P2d 703 (1991)

 

      Where trial court rejected defendant’s guilty plea to violation based solely on court’s blanket policy of not permitting defendants charged with misdemeanors to plead guilty to violations, court failed to properly exercise discretion under this section, which requires that court give plea agreement “due consideration” before deciding whether or not to accept plea. State v. Justice, 273 Or App 457, 361 P3d 39 (2015)

 

 

      135.435

 

NOTES OF DECISIONS

 

      Evidence of prior conviction was admissible notwithstanding that this section, making statements part of plea discussion inadmissible, was applicable under circumstances. State v. Aldridge, 33 Or App 37, 575 P2d 675 (1978)

 

      Defendant’s offer to “tell the complete story” did not necessarily imply that defendant was offering to incriminate himself or to plead guilty, and thus statement was not inadmissible as part of plea discussion or agreement. State v. Reynolds, 43 Or App 619, 603 P2d 1223 (1979), aff’d 289 Or 533, 614 P2d 1158 (1980)

 

LAW REVIEW CITATIONS: 74 OLR 1365 (1995)

 

      135.455

 

NOTES OF DECISIONS

 

      Requirement that a defendant disclose his alibi defense, without the reciprocal requirement that the prosecutor disclose the evidence to be used to refute the alibi, is an unconstitutional violation of due process. Wardius v. Ore., 412 US 470, 93 S Ct 2208, 37 L Ed 2d 82 (1973)

 

      This section requires that criminal defendants specifically identify which witnesses will be used to establish alibi defense and, given that reciprocal discovery is constitutionally essential, state must specifically identify which witnesses will be used to rebut alibi. State v. Frye, 34 Or App 871, 581 P2d 528 (1978)

 

      Where defendant complied with this section by providing notice of her intent to present an alibi defense, but failed to give proper notice of the witnesses she intended to call in support of her alibi, it was error for trial court to preclude her from giving testimony regarding her alibi. State v. Douglas, 292 Or 516, 641 P2d 561 (1982)

 

      Preclusion sanction of this section excludes only evidence that defendant was at particular place other than location of crime. State v. Redwine, 79 Or App 25, 717 P2d 1239 (1986)

 

      This section does not prohibit defendant’s own testimony about location and activities at time in question, notwithstanding failure to give prior notice of intention to present alibi evidence. State v. Edgmand, 306 Or 535, 761 P2d 505 (1988)

 

      Statements made by defendant in pre-sentence investigation interview were statements made during “proceeding relating to guilty plea” and as such were correctly suppressed. State v. Hubbard, 113 Or App 587, 833 P2d 1313 (1992)

 

      Evidence that merely establishes that defendant was, at time of alleged offense, absent from place where alleged offense was committed is not alibi evidence and may not be excluded on ground of failure to give notice required for alibi evidence under this section. State v. Paniagua-Montes, 264 Or App 216, 330 P3d 1250 (2014), Sup Ct review denied

 

LAW REVIEW CITATIONS: 28 WLR 127 (1991)

 

      135.465

 

      See annotations under ORS 135.880 in permanent edition.

 

      135.510 to 135.560

 

LAW REVIEW CITATIONS: 2 EL 230-274 (1971)

 

      135.510

 

NOTES OF DECISIONS

 

      This section does not bar motion to quash indictment based on ground that grand jury was selected in violation of Article VII (Am), section 5 of Oregon Constitution. State v. Gortmaker, 60 Or App 723, 655 P2d 575 (1982), aff’d 295 Or 505, 668 P2d 354 (1983)

 

      If indictment cannot be attacked on ground grand jury heard insufficient evidence or wrong type of evidence, it cannot be set aside because grand jury heard evidence that might not be admissible at trial. State v. Dike, 91 Or App 542, 756 P2d 657 (1988), Sup Ct review denied

 

      This section sets out exclusive statutory grounds for setting aside indictment and, because those grounds do not include use of hearsay evidence, trial court was not required to set aside indictment on that ground. State v. Stout, 305 Or 34, 749 P2d 1174 (1988)

 

      Where trial court refused to suppress bank records of defendant obtained by grand jury subpoena based on insufficient affidavit and records were properly resubpoenaed before trial, invalid subpoena is not ground to set aside indictment listed in this statute. State v. O’Brien, 96 Or App 498, 774 P2d 1109 (1989), Sup Ct review denied

 

      135.520

 

NOTES OF DECISIONS

 

      Where court dismissed information and ordered new trial after jury was unable to reach verdict, motion for dismissal was made prior to impending trial for purpose of this section. State v. Smith, 35 Or App 511, 582 P2d 26 (1978)

 

      Motion to set aside indictment due to inadequate grand jury must be made prior to trial. State v. Pratt, 316 Or 561, 853 P2d 827 (1993); State v. Thompson, 126 Or App 500, 869 P2d 361 (1994)

 

      Trial judge’s authority to grant additional time for making motion based on good cause does not permit hearing motion to set aside indictment after trial has commenced. State ex rel Schrunk v. Bonebrake, 318 Or 312, 865 P2d 1289 (1994)

 

      135.530

 

NOTES OF DECISIONS

 

      Defendant’s argument that because first indictment was quashed on constitutional grounds, trial court had no authority under this section to allow resubmission and reindictment was without merit. State v. King, 84 Or App 165, 733 P2d 472 (1987), Sup Ct review denied, aff’d on other grounds, King v. Brown, 8 F3d 1403 (9th Cir. 1993)

 

      135.610 to 135.700

 

LAW REVIEW CITATIONS: 2 EL 230-274 (1971)

 

      135.610

 

      See also annotations under ORS 135.620 in permanent edition.

 

NOTES OF DECISIONS

 

      Absent exceptional circumstances or statutory exceptions (ORS 135.640) a demurrer filed after entry of a plea of not guilty is not timely and a court is without authority to entertain it. State v. Dolan, 40 Or App 447, 595 P2d 836 (1979)

 

      Demurrer was timely when defendant reserved “all rights against each indictment” at arraignment and arraignment court did not object to this reservation and when trial court allowed defendant to demur at beginning of trial and to renew demurrer at end of trial. State v. Wimber, 315 Or 103, 843 P2d 424 (1992)

 

      135.630

 

NOTES OF DECISIONS

 

      Where there is a general provision defining the elements of an offense, neither the indictment nor the proof need negative exceptions. State v. Alexander, 6 Or App 526, 487 P2d 1151 (1971)

 

      Failure to demur to indictment waives all objections concerning sufficiency of indictment as to definiteness and certainty. State v. Kennedy, 6 Or App 552, 488 P2d 819 (1971), Sup Ct review denied

 

      Inclusion of count identifying lesser included offense committed as part of same act did not constitute charging of two crimes. State v. McCauley, 8 Or App 571, 494 P2d 438 (1972), Sup Ct review denied

 

      This section must be read in conjunction with ORS 132.560. State v. Norton, 9 Or App 595, 497 P2d 680 (1972), Sup Ct review denied

 

      Identity of persons connected with criminal offense need not be stated in indictment unless constituting essential element of crime. State v. Shadley/Spencer/Rowe, 16 Or App 113, 517 P2d 324 (1973); State v. Fitzpatrick, 149 Or App 246, 942 P2d 819 (1997)

 

      Whether complaint is “definite and certain” depends on whether it states acts in ordinary and concise language so that person of common understanding would know what was intended. State v. Johns, 20 Or App 249, 531 P2d 282 (1975)

 

      Where there was no prison rule prohibiting prisoners from using telephones without proper authority, inmate’s admission to Discipline Committee that he had wrongly used telephone did not establish existence of such rule, and did not bar inmate from challenging existence of rule for first time on appeal. Haller v. OSP, 31 Or App 461, 570 P2d 983 (1977)

 

      Where complaint charging criminal mischief alleged damage to multiple parcels of property arising from same episode, and it was impossible to determine from face of complaint how many property owners were involved, complaint alleged more than one offense not separately stated. State v. Sweet, 46 Or App 31, 610 P2d 310 (1980)

 

      Where defendant’s theory supporting demurrer required analysis of facts extrinsic to indictment, demurrer could not be sustained. State v. Waldo, 93 Or App 613, 763 P2d 417 (1988)

 

      Where two counts of indictment did not designate county in which offense was committed, court erred in not granting demurrer. State v. Dunn, 99 Or App 519, 783 P2d 29 (1989), Sup Ct review denied

 

      Although underlying crime of robbery requires intentional, not just knowing, use of force, where indictment sufficiently alleges intent elsewhere, indictments for aggravated murder related to robbery were not defective for using term “knowingly” in reference to use of physical force. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Trial court may not consider facts not alleged in complaint when ruling on demurrer. State v. Reed, 116 Or App 58, 840 P2d 723 (1992)

 

      Demurrer based on ground that alleged criminal conduct occurred outside applicable statute of limitations is claim that indictment contains matter constituting justification or bar, not claim that facts stated do not constitute offense. State v. Wimber, 315 Or 103, 843 P2d 424 (1992)

 

      Attempt to use motion in arrest of judgment to raise constitutional claim was improper and did not preserve claim for appellate review. State v. Bockorny, 124 Or App 585, 863 P2d 1296 (1993), Sup Ct review denied

 

      Where examination of discovery material did not allow defendant to ascertain which facts indictment relied on, dismissal of indictment was improper because defect was not apparent on face of indictment. State v. Morgan, 151 Or App 750, 951 P2d 187 (1997)

 

      Whether indictment substantially conforming to statutory language is subject to demurrer based on lack of specificity depends on whether discovery is adequate to inform defendant of specific conduct being alleged. State v. Wright, 167 Or App 297, 999 P2d 1220 (2000), modified 169 Or App 78, 7 P3d 738 (2000), Sup Ct review denied

 

      Defendant may file demurrer on grounds indictment fails to state facts constituting charged offense, notwithstanding that facts stated might constitute different offense. State v. Hankins, 342 Or 258, 151 P3d 149 (2007)

 

      Where state failed to allege in indictment basis for joinder of crimes in language of ORS 132.560 or to allege facts sufficient to establish compliance with that statute, it was error for court to deny defendant’s demurrer challenging that indictment. State v. Poston, 277 Or App 137, 370 P3d 904 (2016)

 

LAW REVIEW CITATIONS: 53 OLR 102 (1973)

 

      135.640

 

NOTES OF DECISIONS

 

      Motion for judgment of acquittal at conclusion of state’s case based on alleged vagueness of underlying criminal statutes should be construed by trial courts as premature motion in arrest of judgment and motion should be denied with leave to review motion after verdict. State v. McKenzie, 307 Or 554, 771 P2d 264 (1989)

 

COMPLETED CITATIONS: State v. Zimmerlee, 261 Or 49, 492 P2d 795 (1972)

 

      135.660

 

NOTES OF DECISIONS

      Trial court lacks authority to amend unconstitutional indictment by striking offensive language. State v. Costello, 115 Or App 202, 837 P2d 552 (1992)

 

      135.670

 

NOTES OF DECISIONS

 

      Where a demurrer was allowed and thus acted as a bar, two alternatives were presented to the complaining party: (1) It could have sought the district court’s permission to refile under this section; or (2) it could have appealed the order to the circuit court. State v. Brent, 23 Or App 262, 541 P2d 1313 (1975)

 

      Filing of new complaint after granting demurrer with leave to submit or refile under this section marks initiation of new action requiring personal service. State v. Picard, 37 Or App 483, 587 P2d 514 (1978)

 

      Where leave to refile is granted, action may be refiled in different court having jurisdiction. State v. Goakey, 47 Or App 31, 613 P2d 1074 (1980), Sup Ct review denied

 

      Statute and city ordinance charge “same crime” within meaning of this section if they make same conduct criminal in similar language, regardless of whether they impose different penalties. State v. Stevenson, 79 Or App 166, 718 P2d 766 (1986), Sup Ct review denied

 

      This section does not require state to seek leave from trial court to refile accusatory instrument at time demurrer to original instrument is allowed. State v. Moline, 104 Or App 173, 800 P2d 299 (1990); State v. Harrison, 125 Or App 472, 865 P2d 482 (1993), as modified by 126 Or App 495, 870 P2d 230 (1994), Sup Ct review denied

 

      Failure to resubmit case within 30-day time limit in this section is not bar to further prosecution. State v. Moline, 104 Or App 173, 800 P2d 299 (1990); State v. Harrison, 125 Or App 472, 865 P2d 482 (1993), as modified by 126 Or App 495, 870 P2d 230 (1994), Sup Ct review denied

 

      Election by state to appeal granting of demurrer does not bar later reindictment. State v. Harrison, 125 Or App 472, 865 P2d 482 (1993), as modified by 126 Or App 495, 870 P2d 230 (1994), Sup Ct review denied

 

      135.703

 

      See also annotations under ORS 134.010 in permanent edition.

 

NOTES OF DECISIONS

 

      By enacting ORS 161.705, the legislature intended to authorize a compromise of all Class C felonies which could be punished “as a misdemeanor.” State v. Dumond, 270 Or 854, 530 P2d 32 (1974)

 

      ORS 135.755 must be read together with ORS 135.705 and this section. State v. Martindale, 30 Or App 1127, 569 P2d 659 (1977), Sup Ct review denied

 

      Criminal charge based on failure of driver involved in accident to leave name and address is not a charge which can be dismissed on basis of civil compromise. State v. Duffy, 33 Or App 301, 576 P2d 797 (1978)

 

      To be entitled to civil compromise, defendant’s misdemeanor must affect only person or persons with civil remedy: acts criminalized to protect public at large are not covered by this section; overruling State v. Phon Yos, 71 Or App 57, 691 P2d 508 (1984). State v. Dugger, 73 Or App 109, 698 P2d 491 (1985)

 

      Defendant, who was charged after damaging employer’s vehicle, repairs to which were paid for by employer’s insurer and who then entered into valid civil compromise with employer but not with insurer, is eligible for dismissal under ORS 135.705 because employer, not insurer, is person injured by defendant’s criminal acts. State v. Ferguson, 261 Or App 497, 323 P3d 496 (2014)

 

LAW REVIEW CITATIONS: 10 WLJ 187 (1974)

 

      135.705

 

      See also annotations under ORS 134.020 in permanent edition.

 

NOTES OF DECISIONS

 

      The power to compromise is in the court, not the injured party; “satisfaction” requires only repayment of the amount stolen, not consent of the injured party to the compromise. State v. Dumond, 270 Or 854, 530 P2d 32 (1974)

 

      ORS 135.755 must be read together with ORS 135.703 and this section. State v. Martindale, 30 Or App 1127, 569 P2d 659 (1977), Sup Ct review denied

 

      Court dismissing indictment has discretion to determine amount and method for defendant’s payment of costs and expenses. State v. Belles, 68 Or App 910, 683 P2d 1027 (1984)

 

      Agreement, after negotiations by father of girl, to accept $5,000 from father of defendant for “loss of face” resulting from intercourse between defendant and girl was not enforceable civil compromise under this section requiring dismissal of charge of contributing to sexual delinquency of minor as such agreement did not acknowledge satisfaction in writing by “the person injured.” State v. Phak, 91 Or App 160, 754 P2d 31 (1988)

 

      Custodial parent may not agree to civil compromise on behalf of minor victim because custodial parent does not have authority to contract on behalf of minor child. State v. Fitterer, 109 Or App 541, 820 P2d 841 (1991), Sup Ct review denied

 

      Payment of civil penalty as provided under ORS 30.875 is civil compromise allowing dismissal of accusatory instrument. State v. Johnsen, 327 Or 415, 962 P2d 689 (1998)

 

      Defendant, who was charged after damaging employer’s vehicle, repairs to which were paid for by employer’s insurer and who then entered into valid civil compromise under ORS 135.703 with employer but not with insurer, is eligible for dismissal because employer, not insurer, is person injured by defendant’s criminal acts. State v. Ferguson, 261 Or App 497, 323 P3d 496 (2014)

 

LAW REVIEW CITATIONS: 10 WLJ 187, 188 (1974)

 

      135.709

 

      See annotations under ORS 134.040 in permanent edition.

 

      135.711

 

NOTES OF DECISIONS

 

      Sentence cannot be enhanced if circumstances defining specific conduct with which defendant is charged are not alleged in offense charged; it is not sufficient that charging instrument as whole contains allegations as to pertinent subcategory factors. State v. Drake, 113 Or App 16, 832 P2d 44 (1992)

 

      Where indictment properly alleges elements of underlying offense, inclusion of alternative grounds for enhancing sentence does not create allegation of multiple offenses. State v. Merrill, 135 Or App 408, 899 P2d 712 (1995); State v. Wright, 150 Or App 159, 945 P2d 1083 (1997), Sup Ct review denied

 

      135.713 to 135.743

 

LAW REVIEW CITATIONS: 2 EL 230-274 (1971)

 

      135.713

 

      See annotations under ORS 132.570 in permanent edition.

 

      135.715

 

      See also annotations under ORS 132.590 in permanent edition.

 

NOTES OF DECISIONS

 

      Count of manslaughter in indictment charging second degree murder was merely unnecessary verbiage and worked no prejudice to defendant’s substantial rights. State v. McCauley, 8 Or App 571, 494 P2d 438 (1972), Sup Ct review denied

 

      Superfluous inclusion of word “amended” in caption of newly issued indictment is not prejudicial to defendant because state must elect to proceed either under original indictment or under new indictment. State v. Mitchell, 9 Or App 17, 495 P2d 1245 (1972); State v. Steward, 9 Or App 35, 496 P2d 40 (1972), Sup Ct review denied

 

      Indictment that included unconstitutionally vague language is not defect in matter of form. State v. Costello, 115 Or App 202, 837 P2d 552 (1992)

 

COMPLETED CITATIONS: State v. Zimmerlee, 261 Or 49, 492 P2d 795 (1972)

 

      135.717

 

      See also annotations under ORS 132.610 in permanent edition.

 

NOTES OF DECISIONS

 

      A defendant cannot make time a material element of the crime by a defense of alibi. State v. Knight, 6 Or App 534, 487 P2d 1404 (1971)

 

      Where alleged date of offense differed from proven date of offense and date was not material to charge, variance was permissible absent showing of actual prejudice. State v. Long, 320 Or 361, 885 P2d 696 (1994), cert. denied, 514 US 1087; State v. Baldeagle, 154 Or App 234, 961 P2d 264 (1998), Sup Ct review denied

 

      135.725

 

      See also annotations under ORS 132.630 in permanent edition.

 

NOTES OF DECISIONS

 

      An indictment for obtaining property by false pretenses containing an erroneous allegation as to the ownership of the property was sufficient under this section. State v. Alden, 8 Or App 519, 495 P2d 302 (1972)

 

      Allegations of ownership were required as part of description of stolen property, not as element of crime of theft, but to protect defendants from possibility of being charged twice for same offense. State v. Hull, 33 Or App 183, 575 P2d 1015 (1978), aff’d 286 Or 511, 595 P2d 1240 (1979)

 

      135.727

 

      See annotations under ORS 132.640 in permanent edition.

 

 

      135.730

 

NOTES OF DECISIONS

 

      State bears burden of proving jurisdictional facts in criminal cases, and defendant who is Indian and wishes to challenge state’s subject matter jurisdiction must assert defendant’s Indian status and provide court with enough evidence of that status in time to permit state to rebut evidence at trial and prove defendant’s non-Indian status. State v. Hill, 277 Or App 751, 373 P3d 162 (2016), Sup Ct review denied

 

 

      135.733

 

      See annotations under ORS 132.670 in permanent edition.

 

      135.737

 

      See annotations under ORS 132.690 in permanent edition.

 

      135.740

 

      See annotations under ORS 132.710 in permanent edition.

 

      135.743

 

      See annotations under ORS 132.720 in permanent edition.

 

      135.745

 

      See also annotations under ORS 134.110 in permanent edition.

 

NOTES OF DECISIONS

 

      Dismissal by the court on defendant’s motion of an information charging a felony did not constitute a bar to filing of an indictment two days later charging defendant with a felony. State v. Ivory, 20 Or App 253, 531 P2d 293 (1975)

 

      Where information was not filed against defendant within 30-day period after he was held to answer for crime defendant was entitled to dismissal of information, although prosecution was not barred from subsequently proceeding against defendant upon indictment. State v. McCormick, 280 Or 417, 571 P2d 499 (1977)

 

      “Held to answer” means bound over after preliminary hearing or held pursuant to information filed by district attorney. State v. Schiff, 93 Or App 301, 762 P2d 319 (1988)

 

      Prejudice to defendant is not required for dismissal due to lack of timely prosecution. State v. Emery, 318 Or 460, 869 P2d 859 (1994)

 

      Dismissal due to failure to comply with statutory requirement for speedy trial is without prejudice. State v. Emery, 318 Or 460, 869 P2d 859 (1994)

 

COMPLETED CITATIONS: State v. Rowley, 6 Or App 13, 485 P2d 1120 (1971), Sup Ct review denied

 

 

      135.747

 

NOTE: Repealed as of April 1, 2014; but see sec. 4, c. 431, Oregon Laws 2013

 

 

      See also annotations under ORS 134.120 in permanent edition.

 

NOTES OF DECISIONS

 

      The state’s preference to try a codefendant first did not cause improper delay. State v. Tyrrell, 8 Or App 127, 492 P2d 485 (1971), Sup Ct review denied

 

      Defendant who seeks outright dismissal with prejudice may take option of claiming constitutional rights to speedy trial have been violated and not invoke this section. State v. Dykast, 300 Or 368, 712 P2d 79 (1985)

 

      Delay of more than two years caused by Supreme Court review of pretrial motion was not unreasonable or prejudicial to defendant. State v. Moylett, 123 Or App 600, 860 P2d 886 (1993), Sup Ct review denied

 

      Prejudice to defendant is not required for dismissal due to lack of timely prosecution. State v. Emery, 318 Or 460, 869 P2d 859 (1994)

 

      Dismissal due to failure to comply with statutory requirement for speedy trial is without prejudice. State v. Emery, 318 Or 460, 869 P2d 859 (1994)

 

      Potential ability of state to reindict following dismissal is irrelevant consideration. State v. Green, 140 Or App 308, 915 P2d 460 (1996)

 

      Date of issuance or reissuance of case is starting date for calculating period of time state takes to bring defendant to trial. State v. Hampton, 152 Or App 742, 954 P2d 1267 (1998); State v. Purdom, 218 Or App 514, 180 P3d 150 (2008), Sup Ct review denied; State v. Bayer, 229 Or App 267, 211 P3d 327 (2009), Sup Ct review denied

 

      Where defendant causes postponement through motion, postponement period attributable to defendant includes only reasonable time for judge to study legal question raised and issue decision. State v. Hampton, 152 Or App 742, 954 P2d 1267 (1998)

 

      Eight-year delay between indictment and arrest is presumptively prejudicial. State v. Rohlfing, 155 Or App 127, 963 P2d 87 (1998)

 

      Dismissal due to failure to comply with statutory requirement for speedy trial does not deprive prosecutor of authority to submit case to grand jury for consideration of additional charges arising from same incident. State v. Johnson, 172 Or App 29, 17 P3d 1087 (2001), Sup Ct review denied

 

      Where defendant is responsible for portion of delay, defendant may still assert that portion attributable to state was sufficiently unreasonable to justify dismissal. State v. Harman, 179 Or App 611, 40 P3d 1079 (2002); State v. Johnson, 339 Or 69, 116 P3d 879 (2005)

 

      Mere failure on part of defendant to insist state bring case to trial is not implied consent to delay. State v. Johnson, 193 Or App 250, 90 P3d 4 (2004), modified 194 Or App 28, 92 P3d 766 (2004), aff’d 339 Or 69, 116 P3d 879 (2005); State v. Adams, 339 Or 104, 116 P3d 898 (2005)

 

      Factors to be considered in determining reasonableness of delay include nature of charges, length of delay and state’s explanation or lack of explanation for failing to bring case to trial. State v. Johnson, 193 Or App 250, 90 P3d 4 (2004), modified194 Or App 28, 92 P3d 766 (2004), aff’d 339 Or 69, 116 P3d 879 (2005); State v. Adams, 339 Or 104, 116 P3d 898 (2005)

 

      Right of defendant charged with crime to be brought to trial within reasonable period of time is applicable to all times during which prosecutor has power to move case forward. State v. Johnson, 339 Or 69, 116 P3d 879 (2005)

 

      Fact that time frame for serving particular warrant was within typical time frame for serving warrants within jurisdiction does not establish time frame as being reasonable for speedy trial purposes. State v. Davids, 339 Or 96, 116 P3d 894 (2005)

 

      Statute of limitations for offense provides indicator of legislative view regarding what constitutes unreasonable delay in proceeding against defendant for particular offense. State v. Adams, 339 Or 104, 116 P3d 898 (2005)

 

      Where inmate defendant is aware of pending charges and knowingly fails to file notice requesting trial under ORS 135.760 or knowingly fails to file trial demand under ORS 135.775, whichever is applicable, defendant is precluded from asserting that subsequent period of delay violates statutory speedy trial right. State v. Ayers, 203 Or App 683, 126 P3d 1241 (2006), modified 207 Or App 668, 143 P3d 251 (2006), Sup Ct review denied

 

      Violations are subject to dismissal for unreasonable delay in bringing matter to trial. State v. Greenlick, 210 Or App 662, 152 P3d 971 (2007)

 

      Agreement to delay commencement of trial made by attorney representing defendant in matter other than relevant case does not waive right to speedy trial or give state reasonable grounds for delay. State v. Forsyth, 220 Or App 476, 188 P3d 299 (2008)

 

      Where delay is not attributable to defendant or to state, delay is included for purpose of calculating whether defendant has been tried within reasonable period of time. State v. Spicer, 222 Or App 215, 193 P3d 62 (2008)

 

      Where defendant cited to appear is unaware of subsequent indictment, failure to appear as required by citation is not consent to delay of trial on offenses charged by indictment. State v. Coulson, 243 Or App 257, 258 P3d 1253 (2011)

 

      Defendant gives consent to delay only when defendant expressly agrees to postponement requested by state or court. State v. Glushko/Little, 351 Or 297, 266 P3d 50 (2011)

 

      If defendant knowingly fails to appear for hearing, defendant is entirely in control of amount of delay that follows failure to appear regardless of additional steps that state may have been able to take to locate defendant--that portion of delay will be considered reasonable, although defendant did not consent to delay, for purposes of applying section. State v. Stephens, 252 Or App 400, 287 P3d 1181 (2012)

 

      Where delay attributable to state exceeds 15 months and where significant part of delay is determined to be unreasonable, court will likely not uphold denial of motion to dismiss in misdemeanor case. State v. Peterson, 252 Or App 424, 287 P3d 1243 (2012)

 

      Defendant is “brought to trial” when trial commences, even if ultimate result is mistrial. State v. Garner, 253 Or App 64, 289 P3d 351 (2012), Sup Ct review denied

 

      Where second trial in criminal proceeding is at defendant’s request and is for purpose of vacating lower court conviction, this section does not apply. State v. Johnson, 253 Or App 392, 290 P3d 305 (2012)

 

      Filing of complaint or information marks beginning of time period during which defendant must be brought to trial. State v. Murr, 254 Or App 456, 295 P3d 122 (2013), Sup Ct review denied

 

      Repeal of this section does not apply where criminal defendant appealed denial of motion to dismiss under this section and appeal was pending on operative date of repeal. State v. Straughan, 263 Or App 225, 327 P3d 1172 (2014)

 

COMPLETED CITATIONS: State v. Rowley, 6 Or App 13, 485 P2d 1120 (1971), Sup Ct review denied

 

      135.750

 

      See also annotations under ORS 134.130 in permanent edition.

 

NOTES OF DECISIONS

 

      “Sufficient reason therefor” refers to court’s decision not to dismiss indictment, not to state’s failure to proceed against or try defendant. State v. Johnson, 339 Or 69, 116 P3d 879 (2005)

 

LAW REVIEW CITATIONS: 44 WLR 761 (2008)

 

      135.753

 

      See also annotations under ORS 134.140 in permanent edition.

 

NOTES OF DECISIONS

 

      A dismissal of a misdemeanor is a bar only if it was after indictment, and the indictment was dismissed pursuant to [former] ORS 134.010 to 134.160. State v. Borders, 9 Or App 385, 496 P2d 243 (1972), Sup Ct review denied

 

      Dismissal of an information, containing an indorsement at the foot designating the offense as “Class B Felony” in district court is not a dismissal of a misdemeanor within the meaning of this section and thus is not a bar to prosecution in the circuit court. State v. Laguardia, 11 Or App 75, 501 P2d 1005 (1972)

 

      Dismissal of a misdemeanor charge in district court in order to consolidate it with a felony charge arising from the same transaction is possible and is no bar to further proceedings on the misdemeanor charge, notwithstanding this section. State v. Leverich, 14 Or App 222, 511 P2d 1265 (1973), aff’d 269 Or 45, 522 P2d 1390 (1974)

 

      For purposes of former statute similar to this section, violations of [former] ORS 483.992 (2) and [former] ORS 483.999 are not the same offense. State v. Kaser, 15 Or App 411, 515 P2d 1330 (1973)

 

      Trial court erred in dismissing felony indictment with prejudice where: 1) the state was unable to proceed due to external circumstances beyond its control and requested dismissal; 2) defendant made no showing of actual prejudice; and 3) dismissal with prejudice was not reasonably required to assure defendant’s right to a speedy trial nor the public’s right to effective enforcement of the criminal law. State v. Williams, 17 Or App 43, 520 P2d 462 (1974)

 

      Dismissal by the court on defendant’s motion of an information charging a felony did not constitute a bar to filing of an indictment two days later charging defendant with a felony. State v. Ivory, 20 Or App 253, 531 P2d 293 (1975)

 

      Where misdemeanor has been dismissed, bar against prosecution for same crime applies only to dismissed offense. State v. Stover, 271 Or 132, 531 P2d 258 (1975)

 

      This section governs sufficiency of accusatory instruments other than traffic citations. State v. Strop, 31 Or App 893, 572 P2d 319 (1977)

 

      This section does not apply to dismissals based on sufficiency of accusatory instruments. State v. Goakey, 47 Or App 31, 613 P2d 1074 (1980), Sup Ct review denied

 

      Where court has dismissed charges in indictment, court may not reinstate charges by vacating order of dismissal. State v. Dinsmore, 200 Or App 432, 116 P3d 226 (2005), aff’d 342 Or 1, 147 P3d 1146 (2006)

 

      135.755

 

      See also annotations under ORS 134.150 in permanent edition.

 

NOTES OF DECISIONS

 

      Dismissal of a misdemeanor charge in district court in order to consolidate it with a felony charge arising from the same transaction is possible and is no bar to further proceedings on the misdemeanor charge, notwithstanding this section. State v. Leverich, 14 Or App 222, 511 P2d 1265 (1973), aff’d 269 Or 45, 522 P2d 1390 (1974)

 

      A dismissal which serves no purpose other than to render moot a party’s statutory right to seek appellate review is not ordered to “further justice.” State v. Hoare, 20 Or App 439, 532 P2d 240 (1975)

 

      Having withstood a general constitutional challenge, this section does not permit the trial judge to reconsider on a case-by-case basis whether “furtherance of justice” requires the state to forego its statutory appeal rights. State v. Hoare, 20 Or App 439, 532 P2d 240 (1975)

 

      Where prosecutors could not find the appropriate file during arraignment and refused to proceed without it, it was not “in furtherance of justice” for the court to dismiss the charge with prejudice because of the resulting delay. State v. Shepherd, 21 Or App 52, 533 P2d 353 (1975), Sup Ct review denied

 

      This section must be read together with ORS 135.703 and 135.705, and thus dismissal on basis of civil compromise was improper where there was no written acknowledgment by person injured that he had received satisfaction for injury. State v. Martindale, 30 Or App 1127, 569 P2d 659 (1977), Sup Ct review denied

 

      This section applies only to criminal cases, and a proceeding to declare person habitual traffic offender is civil. State v. Wright, 34 Or App 663, 579 P2d 266 (1978)

 

      Where trial of major traffic crime had been postponed twice on defendant’s own motion and twice because of clerical errors in court administrator’s office and defendant demonstrated no prejudice from the delay, dismissal by trial judge was abuse of discretion. State v. Bethune, 51 Or App 271, 624 P2d 1113 (1981)

 

      Dismissal authority is limited to action taken before trial. State ex rel Penn v. Norblad, 323 Or 464, 918 P2d 426 (1996); State v. Peekema, 328 Or 342, 976 P2d 1128 (1999)

 

      Where constitutional violation is absent, inconvenience, expense or delay caused by prosecution of criminal charge is insufficient ground to warrant dismissal. State v. Stough, 148 Or App 353, 939 P2d 652 (1997), Sup Ct review denied

 

      Where trial court was simultaneously presented with defendant’s request to plead guilty under ORS 135.335 and prosecutor’s motion to dismiss charges, court had discretionary authority under this section to dismiss charges “in furtherance of justice.” Eby v. Premo, 282 Or App 114, 386 P3d 224 (2016), Sup Ct review denied

 

      135.757

 

      See also annotations under ORS 134.160 in permanent edition.

 

NOTES OF DECISIONS

 

      Dismissal of a misdemeanor charge in district court in order to consolidate it with a felony charge arising from the same transaction is possible and is no bar to further proceedings on the misdemeanor charge, notwithstanding this section. State v. Leverich, 14 Or App 222, 511 P2d 1265 (1973), aff’d 269 Or 45, 522 P2d 1390 (1974)

 

      135.760 to 135.773

 

NOTES OF DECISIONS

 

      Where defendant, who requested speedy trial, made written motion for psychiatric examination and a continuance, state had already set trial within 90-day limit, and examination was delayed because of state hospital backlog which resulted in delay of trial beyond 90-day limit, circumstances were not sufficient to require dismissal of charges. State v. Fannin, 48 Or App 795, 617 P2d 953 (1980)

 

      Where accusatory instrument did not exist at time defendant claims to have given written notice requesting speedy trial, notice cannot trigger statutory rights. State v. Easton, 103 Or App 184, 797 P2d 373 (1990)

 

      135.760

 

      See also annotations under ORS 134.510 in permanent edition.

 

NOTES OF DECISIONS

 

      Letter of inmate to district attorney requesting information concerning status of pending charge of theft was not “notice requesting trial” pursuant to ORS 135.763. State v. Williams, 39 Or App 223, 592 P2d 226 (1979)

 

      Where ORS 135.763 states that district attorney’s duty to act does not arise until he receives notice under this section, defendant’s testimony that he sent notice to district attorney, which trial court believed, was sufficient to activate presumption that notice was received and trial court must determine whether state rebutted presumption and if so, whether district attorney received it more than 90 days before motion to dismiss. State v. Liefke, 101 Or App 208, 789 P2d 700 (1990)

 

      Penalty-phase proceeding is not subject to speedy trial request because no charge is pending at that phase. State v. Pinnell, 319 Or 438, 877 P2d 635 (1994)

 

      Where inmate defendant is aware that indictment, information or complaint is pending or has been filed and knowingly fails to file notice requesting trial, defendant is precluded from asserting that subsequent period of delay violates speedy trial right under [former] ORS 135.747. State v. Ayers, 203 Or App 683, 126 P3d 1241 (2006), modified 207 Or App 668, 143 P3d 251 (2006), Sup Ct review denied

 

      Request from incarcerated defendant to be tried within 90 days on pending harassment charge is sufficient to trigger 90 days period in ORS 135.763. State v. Ashcroft, 260 Or App 1, 316 P3d 355 (2013), Sup Ct review denied

 

 

      135.763

 

      See also annotations under ORS 134.520 in permanent edition.

 

NOTES OF DECISIONS

 

      Letter of inmate to district attorney requesting information concerning status of pending charge of theft was not “notice of requesting trial” pursuant to this section. State v. Williams, 39 Or App 223, 592 P2d 226 (1979)

 

      Where notice to district attorney of request for trial contained only “/S/” on the line above word “defendant” but ribbon copy that defendant had filed with clerk of court had been signed by defendant personally, copy informed district attorney of defendant’s desire to avail himself of rights under ORS 135.760 et seq. State v. Holden, 41 Or App 661, 598 P2d 1252 (1979)

 

      Once inmate requests speedy trial, this section also requires inmate’s express consent to continuance of trial of pending criminal charges. State v. Clarkson, 87 Or App 342, 742 P2d 657 (1987)

 

      Court may grant motion for continuance for good cause where essential witness is hospitalized and unavailable for trial. State v. Guest, 103 Or App 594, 798 P2d 708 (1990), Sup Ct review denied

 

      Where neither district attorney nor defendant requested continuance, court had no authority to deny defendant’s motion to dismiss when trial was not commenced within 90 days of receipt of notice; court will not read “good cause” exception into requirement that state or defendant request continuance. State v. Person, 113 Or App 40, 831 P2d 700 (1992), aff’d 316 Or 585, 853 P2d 813 (1993)

 

      Where prisoner was incarcerated outside of state, 90-day period did not commence until prisoner was returned to custody of Department of Corrections. Danielson v. Maass, 123 Or App 366, 860 P2d 286 (1993), Sup Ct review denied

 

      Where court raised issue of defendant’s speedy trial request at arraignment hearing and explained that granting defendant’s request for continuance meant that trial may not occur within 90-day period and defendant and defense counsel indicated assent, defendant waived right to speedy trial. State v. Hunter, 316 Or 192, 850 P2d 366 (1993)

 

      Penalty-phase proceeding is not subject to speedy trial request because no charge is pending at that phase. State v. Pinnell, 319 Or 438, 877 P2d 635 (1994)

 

      Where inmate is released from incarceration after making request for early trial, state has no duty to provide early trial. State v. Becker, 224 Or App 56, 197 P3d 44 (2008)

 

      Where defense counsel requested that court remove case from trial docket to permit defendant to undergo psychiatric evaluation at Oregon State Hospital and court granted continuance, 90 day period no longer applies and court is not required to reschedule new date for case within 90 days. State v. Ashcroft, 260 Or App 1, 316 P3d 355 (2013), Sup Ct review denied

 

 

      135.765

 

      See also annotations under ORS 134.530 in permanent edition.

 

NOTES OF DECISIONS

 

      State may not avoid requirement of bringing defendant to trial within 90 days by voluntarily dismissing indictment then reindicting defendant. State v. Gilliland, 90 Or App 477, 752 P2d 1255 (1988)

 

      Where neither district attorney nor defendant requested continuance under ORS 135.763, court had no authority to deny defendant’s motion to dismiss when trial was not commenced within 90 days of receipt of notice. State v. Person, 113 Or App 40, 831 P2d 700 (1992), aff’d 316 Or 585, 853 P2d 813 (1993)

 

      Dismissal of charge for failure to bring defendant to trial within 90 days must be with prejudice. State v. Waechter, 163 Or App 282, 986 P2d 1281 (1999)

 

      Where court grants continuance at request of defense counsel, dismissal under this section of charges against defendant is not appropriate. State v. Ashcroft, 260 Or App 1, 316 P3d 355 (2013), Sup Ct review denied

 

 

      135.775

 

NOTES OF DECISIONS

 

In general

 

      Nothing in this section indicates an intent by the legislature to change the rule that concurrent sentences may be provided only when they may be served in the same institution. State v. Stewart, 6 Or App 264, 487 P2d 889 (1971)

 

      The Board of Parole did not act illegally in imposing upon the prisoner a condition that he sign a waiver of extradition before being granted parole to authorities of another state. Bailleaux v. Cupp, 535 F2d 543 (1976)

 

      Where defendant refused to cooperate with prison officials of sending state in providing requisite information for certificate of inmate status, such information was important ingredient of receiving state’s decision whether to prosecute prisoner and prisoner was not denied right to speedy trial under Interstate Agreement on Detainers. State v. DeMotte, 42 Or App 413, 600 P2d 923 (1979)

 

      Where no detainer based upon untried indictment, information or complaint had been filed against defendant, Interstate Agreement on Detainers did not become operative and state was not bound by its provisions, so there could be no denial of right to speedy trial under this section. State v. Coffman, 59 Or App 18, 650 P2d 144 (1982)

 

      Defendant, who was convicted but fled state before sentencing and was arrested, convicted and sentenced for crimes committed in California, cannot be returned to Oregon under Interstate Agreement on Detainers (IAD) for sentencing proceeding because defendant was tried in Oregon prior to fleeing and IAD applies only to pending untried charges. State v. Sills, 260 Or App 384, 317 P3d 307 (2013), Sup Ct review denied

 

 

Article III

 

      Article III does not apply if: 1) detaining authority is not party to agreement; 2) defendant has not entered upon “term of imprisonment” when he writes demand letter; or 3) demand letter does not contain information required by this article. State v. Cox, 12 Or App 215, 505 P2d 360 (1973), Sup Ct review denied

 

      Defendant’s rights under Interstate Compact on Detainers are triggered only by lodging of detainer, and thus defendant’s right under this section to speedy trial was not violated where defendant incarcerated in foreign state signed and forwarded forms requesting trial eleven months before Oregon detainers were lodged against him. State v. Hibdon, 36 Or App 97, 583 P2d 597 (1978)

 

      Where defendant requested trial under this section, he did not acquiesce in trial after expiration of statutory period by failing to object to trial date at arraignment. State v. Arwood, 46 Or App 653, 612 P2d 763 (1980)

 

      Under the Interstate Agreement, notice and request must be sent by prisoner to custodian, not to prosecutor and, therefore, defendant’s attempts to initiate speedy trial proceedings by directly contacting Clackamas County District Attorney were ineffective to start running of 180-day period. State v. Smith, 64 Or App 588, 669 P2d 368 (1983)

 

      Section did not apply to Washington inmate who requested that he be brought to trial within 180 days on charges pending in Oregon because he was paroled before end of that period; several jail terms, served in different jurisdictions, do not constitute a single term of imprisonment for purposes of Interstate Agreement on Detainers. State v. Foster, 107 Or App 481, 812 P2d 440 (1991)

 

      180-day period for bringing prisoner to trial does not commence until prisoner’s request for final disposition of charges has actually been delivered to court and prosecuting officer. State v. Burss, 316 Or 1, 848 P2d 596 (1993)

 

      Where 180-day period for bringing prisoner to trial has expired, remedy lies with court in receiving state. Freeman v. Hand, 158 Or App 489, 974 P2d 788 (1999), Sup Ct review denied

 

      Where defendant is aware that interstate detainer has been lodged and defendant knowingly fails to file trial demand, defendant is precluded from asserting that subsequent period of delay violates speedy trial right under [former] ORS 135.747. State v. Ayers, 203 Or App 683, 126 P3d 1241 (2006), modified 207 Or App 668, 143 P3d 251 (2006), Sup Ct review denied

 

 

 

Article IV

 

      Where first indictment was quashed only six days before defendant’s speedy trial period would expire, court did not err in granting state 30-day continuance to resubmit case to grand jury. State v. King, 84 Or App 165, 733 P2d 472 (1987), Sup Ct review denied, aff’d King v. Brown, 8 F3d 1403 (9th Cir. 1993)

 

      Where defendant moved for continuance and to suppress evidence, to which state appealed, time limitation under Article IV was tolled without state requesting continuance. State v. Bernson, 106 Or App 252, 807 P2d 309 (1991), Sup Ct review denied

 

Article V

 

      This section permits receiving state to retain custody of defendant to bring new charges arising out of same incident as charge in indictment under which defendant was transferred to Oregon. State v. King, 84 Or App 165, 733 P2d 472 (1987), Sup Ct review denied, aff’d on other grounds, King v. Brown, 8 F3d 1403 (9th Cir. 1993)

 

Article VI

 

      Section (b) applies only to persons presently in sending state. State v. King, 84 Or App 165, 733 P2d 472 (1987), Sup Ct review denied, aff’d on other grounds, King v. Brown, 8 F3d 1403 (9th Cir. 1993)

 

ATTY. GEN. OPINIONS: A delayed sentence as an indictment not finally disposed of within Article III(a); purpose of Agreement under Article I, liberally construed under Article IX, as requiring imposition of sentence to aid rehabilitation, (1971) Vol 35, p 811

 

      135.805 to 135.873

 

      See also annotations under ORS 133.755 in permanent edition.

 

NOTES OF DECISIONS

 

      Copy of letter sent to district court and also to district attorney’s office, entering not guilty plea and stating “by copy of this letter I am demanding reciprocal discovery from the District Attorney’s office,” was insufficient to make formal demand for disclosure of classes of information available under these sections. State v. Sheppard, 32 Or App 345, 573 P2d 1276 (1978), Sup Ct review denied

 

      Specifications, operating instructions and repair and maintenance records for radar device with which arresting officer measured defendant’s speed were not discoverable under these sections. State v. Spada, 33 Or App 257, 576 P2d 33 (1978), aff’d286 Or 305, 594 P2d 815 (1979)

 

      These sections afford defendant opportunity to obtain specific and detailed information about state’s theory of case and evidence it intends to produce at trial, and purposes that indictments and complaints are designed to serve in criminal cases are now served as well or better by discovery. State v. Strandquist, 57 Or App 404, 644 P2d 658 (1982), Sup Ct review denied

 

      Nothing in discovery statutes prevents state from initiating grand jury investigation of possible criminal activities by potential defense witnesses. State v. Huffman, 65 Or App 594, 672 P2d 1351 (1983)

 

      Where defendant appeals conviction and trial court precluded defense witness because of alleged discovery violation and state being prejudiced, trial court obligated to explore other alternatives to remedy prejudice before precluding witness from testifying. State v. Gill, 96 Or App 358, 772 P2d 957 (1989)

 

LAW REVIEW CITATIONS: 51 OLR 354-369 (1972); 10 WLJ 145-166 (1974); 18 WLR 279 (1982)

 

      135.815

 

NOTES OF DECISIONS

 

      Where a police informant was neither a witness to nor a participant in the commission of the crime charged and did no more than provide facts which helped form basis of probable cause to arrest defendant, testimony of the informer was not significant in establishing guilt or innocence of defendant and state could refuse to disclose his identity. State v. Jessie, 17 Or App 368, 521 P2d 1323 (1974), Sup Ct review denied

 

      Statements or memoranda of witnesses are subject to the disclosure requirements regardless of whether they ever actually came within the possession of the prosecutor. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)

 

      Where report is created, it is subject to discovery as “statement” notwithstanding later incorporation into another report. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)

 

      In criminal case, where state did not intend to offer items in evidence, and they were not obtained from and did not belong to defendant, such items were not discoverable by the defendant. State v. Koennecke, 274 Or 169, 545 P2d 127 (1976)

 

      “Statement” means account of event or declaration of fact intended as complete expression of event or fact. State v. Bray, 31 Or App 47, 569 P2d 688 (1977)

 

      Police officer’s notes are not “statements” and therefore are not subject to discovery. State v. Bray, 31 Or App 47, 569 P2d 688 (1977); State v. Warren, 31 Or App 1121, 572 P2d 341 (1977); State v. McKeen, 33 Or App 343, 576 P2d 804 (1978); State v. Armstrong, 71 Or App 467, 692 P2d 699 (1984); State v. Wrisley, 138 Or App 344, 909 P2d 877 (1995), Sup Ct review denied

 

      Notes and rough drafts used to prepare final report are not discoverable as statements where no significant difference exists between rough drafts and final report. State v. Jackson, 31 Or App 645, 571 P2d 523 (1977)

 

      Where defendant did not request discovery in accordance with ORS 135.845 he could not claim prejudice by state’s alleged failure to comply with this section. State v. Dixon, 31 Or App 1027, 571 P2d 922 (1977), Sup Ct review denied

 

      Fact that defendant could have obtained copies of requested records on his own initiative did not relieve state of duty to disclose imposed by this section. State v. Carsner, 31 Or App 1115, 572 P2d 339 (1977)

 

      In trial of defendant charged with theft of tractor, it was improper for trial court to overrule, without making further factual inquiry, defendant’s objection that photographs of allegedly stolen tractor had not been disclosed to him prior to trial. State v. Warren, 31 Or App 1121, 572 P2d 341 (1977)

 

      Notes and rough drafts differ from “statements” because notes and drafts are not intended to serve as communication to others. State v. Morrison, 33 Or App 9, 575 P2d 988 (1978)

 

      Fragmentary notes and rough drafts are not subject to discovery as “statements.” State v. Morrison, 33 Or App 9, 575 P2d 988 (1978); State v. Wrisley, 138 Or App 344, 909 P2d 877 (1995), Sup Ct review denied

 

      Skull of victim was not discoverable by defendant under this section. State v. Oliverez, 34 Or App 417, 578 P2d 502 (1978), Sup Ct review denied

 

      There was no violation of this section where traces of blood disappeared from knife used in robbery without explanation, but nothing in record established that any tests which prosecution would be required to disclose were performed upon knife. State v. Kilpatrick, 35 Or App 749, 582 P2d 480 (1978)

 

      State’s failure to disclose existence of audio recording of defendant’s arrest was not improper where defendant did not meet burden of showing evidence was favorable and material to his guilt or innocence, and record did not indicate evidence was prejudicial. State v. Peters, 39 Or App 109, 591 P2d 761 (1979), Sup Ct review denied

 

      Breathalyzer ampule is not result of scientific test, experiment, or comparison subject to discovery, nor is breath within ampule “tangible object” subject to discovery. State v. Simpson, 40 Or App 83, 594 P2d 425 (1979)

 

      Where defendant was charged with assaulting his ten-year-old son, and where caseworker testified that she had made notes of conversation with defendant’s wife shortly after conversation occurred, caseworker’s notes were written statements of witness. State v. Johns, 44 Or App 421, 606 P2d 640 (1980), Sup Ct review denied

 

      Police officer’s notes of defendant’s statements were discoverable as “memoranda of . . . oral statements made by defendant,” notwithstanding that copy of report prepared from notes had been given to defendant. State v. Fritz, 72 Or App 409, 695 P2d 972 (1985), Sup Ct review denied

 

      Arresting officer’s response to complaint of misconduct of arresting officer relating to circumstances of arrest of relator which relator sought in conjunction with criminal prosecution is subject to discovery under this section. State ex rel Wilson v. Thomas, 74 Or App 137, 700 P2d 1045 (1985), Sup Ct review denied

 

      District attorney is not required to disclose capacity in which witness will testify nor content of testimony and was not required to inform defendant that witness would be testifying as expert. State v. Caulder, 75 Or App 457, 706 P2d 1007 (1985), Sup Ct review denied

 

      Where caseworker took notes during interviews with complainant and her mother, both of whom testified against defendant, charged with sexual abuse, notes of those conversations would be memoranda of oral statements by state’s witnesses and in control of district attorney. State v. Warren, 81 Or App 463, 726 P2d 387 (1986), aff’d 304 Or 428, 746 P2d 711 (1987)

 

      Where defendant, charged with sodomy and sexual abuse, was denied access to Children’s Services Division file about victim and offense, no statute granted defendant direct access to entire CSD file though trial court should conduct in camera review of those portions of file as indicated in defendant’s discovery request, determine whether it contains evidence favorable to defense and turn such evidence over to defendant. State v. Warren, 304 Or 428, 746 P2d 711 (1987)

 

      Where defendant sought disclosure of statements made by state’s prospective witnesses and requested in camera inspection by court of Children’s Services Division case records relating to victim, court erred when it failed to review files for exculpatory evidence. State v. Wattenbarger, 97 Or App 414, 776 P2d 1292 (1989), Sup Ct review denied

 

      This section did not provide authority for trial court’s order directing district attorney to produce each of 53 children in custody of State of Oregon Children’s Services Division for pretrial interview by defense counsel. State ex rel O’Leary v. Lowe, 307 Or 395, 769 P2d 188 (1989)

 

      Court did not abuse its discretion in denying defendant’s discovery motion requesting state to produce and classify extensive information on all instances of use of particular model of intoxilyzer machine. State v. Andes, 104 Or App 719, 803 P2d 273 (1990), Sup Ct review denied

 

      Where state provided defendant with photocopy of photo state intended to introduce into evidence, this section is not violated by inadvertent failure of state to provide defendant with copy of photo. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Trial judge’s duty to undertake in camera inspection of Children’s Services Division case records cannot be delegated to party or to party’s counsel. State ex rel Carlile v. Lewis, 310 Or 541, 800 P2d 786 (1990)

 

      Trial court did not err in denying motion to make genitalia of victims of sexual abuse available for inspection since district attorney had no custodial relationship with victims that gave him authority to compel examination. State v. Gallup, 108 Or App 508, 816 P2d 669 (1991)

 

      Prosecutor was required to disclose portions of Children’s Services Division files containing written memoranda of statements of witnesses state intended to call, even though files were confidential under [former] ORS 418.770. State v. Wood, 112 Or App 61, 827 P2d 924 (1992), Sup Ct review denied

 

      Because state did not call defendant’s wife or 911 dispatcher and no evidence indicates state intended to call wife or dispatcher, recorded conversation between wife and 911 dispatcher was not subject to discovery. State v. Norman, 114 Or App 395, 835 P2d 146 (1992)

 

      Inspection of police personnel file by trial court in camerawas appropriate to determine whether file contained exculpatory material. State v. Leslie, 119 Or App 249, 850 P2d 1135 (1993), Sup Ct review denied

 

      Where evidence was not inherently exculpatory and no direct link existed between evidence and defendant’s involvement in crime, defendant failed to prove that undisclosed evidence was material and favorable to defense. State v. Baker, 126 Or App 255, 867 P2d 1392 (1994), Sup Ct review denied

 

      Written statements are “relevant” and subject to disclosure only if pertaining to specific testimony to be given by particular witness being called. State v. Divito, 152 Or App 672, 955 P2d 327 (1998), aff’d on other grounds, 330 Or 319, 5 P3d 1103 (2000)

 

      Police failure to include relevant information in notes or reports is not imputable to district attorney as failure to disclose information. State v. Divito, 330 Or 319, 5 P3d 1103 (2000)

 

      135.825

 

NOTES OF DECISIONS

 

      Court did not abuse its discretion in denying defendant’s discovery motion requesting state to produce and classify extensive information on all instances of use of particular model of intoxilyzer machine. State v. Andes, 104 Or App 719, 803 P2d 273 (1990), Sup Ct review denied

 

LAW REVIEW CITATIONS: 10 WLJ 157 (1974)

 

      135.835

 

NOTES OF DECISIONS

 

      Finding that discovery violation prejudiced other side is not prerequisite to refusal to allow witness to testify. State v. Wolfe, 21 Or App 717, 536 P2d 555 (1975), aff’d 273 Or 518, 542 P2d 482 (1975)

 

      Under this section, if defense counsel, though not certain, can “reasonably predict” use of certain exhibits to impeach state’s witness, timely discovery must be given to prosecutor, at risk of discretionary suppression. State v. Young, 94 Or App 683, 767 P2d 90 (1989)

 

      Defense counsel’s instruction to witnesses to not discuss case with prosecutor out of defense counsel’s presence violated this section. State v. Ben, 310 Or 309, 798 P2d 650 (1990)

 

      Where four days before trial, in violation of timeliness requirements of this section, defendant’s attorney sent state notice he intended to call expert to challenge accuracy of Intoxilyzer and moved for continuance to remedy any prejudice to state, trial court erred in denying motion for continuance and excluding expert testimony on basis it would encourage poor practice by defense bar; speculative future harm to state or judicial system was not sufficient to allow witness exclusion. State v. Girard, 113 Or App 238, 832 P2d 463 (1992)

 

      Written statements are “relevant” and subject to disclosure only if pertaining to specific testimony to be given by particular witness being called. State v. Divito, 152 Or App 672, 955 P2d 327 (1998), aff’d on other grounds, 330 Or 319, 5 P3d 1103 (2000)

 

LAW REVIEW CITATIONS: 18 WLR 282 (1982)

 

      135.845

 

NOTES OF DECISIONS

 

      The duty to disclose may arise prior to the filing of an indictment. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)

 

      Where defendant did not request discovery in accordance with this section he could not claim prejudice as result of state’s alleged failure to comply with discovery pursuant to ORS 135.815. State v. Dixon, 31 Or App 1027, 571 P2d 922 (1977), Sup Ct review denied

 

      Notwithstanding that defendant sought discovery of material from district attorney more than five weeks prior to trial, materials delivered two days before trial were furnished as “soon as practicable” where delay was not caused by district attorney’s office. State v. Carsner, 31 Or App 1115, 572 P2d 339 (1977)

 

      Where, without notifying defense as required by this section, prosecution used sexual abuse victim’s dress to impeach defendant, new trial was required. State v. Dickerson, 36 Or App 479, 584 P2d 787 (1978)

 

      Since this section does not require defendant to request discovery material at any particular time when prosecution fails to comply with its discovery obligations and where defendant’s use of evidence required no examination prior to trial, discovery motion made during trial was timely. State v. Clements, 52 Or App 309, 628 P2d 433 (1981)

 

      It was proper for trial court to order usable copy of videotape be provided defendant, at her expense, where state previously had allowed inspection of videotape in police officer’s presence. State v. Kull, 298 Or 38, 688 P2d 1327 (1984)

 

      Absent showing that party intended to avoid compliance, no discovery violation occurs until party finds additional information or material and fails to promptly notify other party. State v. Dillard, 100 Or App 645, 787 P2d 1307 (1990); State v. Beaty, 127 Or App 448, 873 P2d 385 (1994), Sup Ct review denied

 

      135.855

 

NOTES OF DECISIONS

 

      Evidence was insufficient to show that disclosure of confidential informant’s identity was necessary for defendant’s defense where defense of entrapment was unsubstantiated. State v. Gill, 22 Or App 484, 539 P2d 1138 (1975)

 

      Persons accused of murder were not entitled to order requiring recordation of the testimony of witnesses before the grand jury considering indictment against them. State ex rel Smith v. Murchison, 286 Or 469, 595 P2d 1237 (1979)

 

      Where witness for the state had testified on direct examination by the state and grand jury testimony of that witness was previously tape-recorded, defendant was entitled, in furtherance of justice, to examine recording. State v. Hartfield, 290 Or 583, 624 P2d 588 (1981)

 

      Trial court erred in ruling district attorney’s file was exempt from disclosure as work product where file consisted primarily of notes taken by district attorney during interviews with witnesses and contained no opinions, theories or conclusions. State v. Gallup, 108 Or App 508, 816 P2d 669 (1991)

 

      135.865

 

NOTES OF DECISIONS

 

      Remedies in this section for violation of ORS 135.815 are in the alternative and are subject to choice by court rather than by defense counsel. State v. Hand, 19 Or App 514, 528 P2d 126 (1974), Sup Ct review denied

 

      This section makes it clear that not every breach of duty imposed by pretrial discovery statutes requires suppression of proffered evidence. State v. Curtis, 20 Or App 35, 530 P2d 520 (1975), Sup Ct review denied

 

      Though presence or absence of prejudice is important factor to be considered by trial court in deciding whether to impose sanction of refusing to receive in evidence material that has not been disclosed, this section does not require existence of prejudice as condition to imposition of that sanction. State v. Wolfe, 21 Or App 717, 536 P2d 555 (1975), aff’d 273 Or 518, 542 P2d 482 (1975); State v. Dyson, 292 Or 26, 636 P2d 961 (1981). But see State v. Mai, 294 Or 269, 656 P2d 315 (1982)

 

      Trial court had discretion to suppress testimony of state’s witness where the state violated discovery statutes. State v. Johnson, 26 Or App 651, 554 P2d 624 (1976)

 

      In prosecution for driving under influence of intoxicants where police officer’s report was lost and unavailable for discovery, it was error for court, as sanction, to suppress officer’s testimony limited to fact that defendant was driving. State v. Campbell, 44 Or App 3, 604 P2d 1266 (1980), Sup Ct review denied

 

      Where there was nothing in record to show that trial judge considered whether, or to what extent, defendant was prejudiced if in fact state violated discovery statutes, it was improper for trial court to allow defendant’s pretrial motion to dismiss complaint for state’s alleged failure to allow defendant discovery. State v. Mead, 44 Or App 53, 604 P2d 1283 (1980)

 

      Prejudice which resulted from state’s failure to provide defendant with tape recording prior to trial was adequately dispelled when trial court granted defendant 13-day continuance and leave to reopen case. State v. Kersey, 54 Or App 944, 636 P2d 1009 (1981)

 

      Court is required to make inquiry into alleged discovery violation and possible prejudicial effect prior to allowing introduction of evidence. State v. George, 55 Or App 224, 637 P2d 1305 (1981), as modified by 56 Or App 1, 640 P2d 1043 (1982)

 

      Where exculpatory nature of unavailable evidence was speculative and where it would have been cumulative of other evidence produced at trial, trial judge did not abuse his discretion in denying motions to suppress and dismiss. State v. Guinn, 56 Or App 412, 642 P2d 312 (1982)

 

      The preclusion sanction of this section is not inconsistent with the Article I, Section 11 right to compulsory process of the Oregon Constitution provided that the court finds that the prosecution is prejudiced by defendant’s failure to comply with the reciprocal discovery statutes and provided further that it appears that no sanction short of preclusion effectively will avoid the prejudice which defendant’s lack of compliance created. State v. Mai, 294 Or 269, 656 P2d 315 (1982); State v. Johanesen, 110 Or App 348, 822 P2d 154 (1991); State v. Fain, 132 Or App 488, 888 P2d 1052 (1995)

 

      It was proper to exclude videotape where trial had been twice postponed, repeated attempts by defendant’s attorney to secure copy of videotape were unsuccessful, trial judge ordered copy provided defendant one week prior to scheduled trial date, trial judge expressly concluded that nondisclosure prejudiced defendant and trial judge concluded that district attorney had shown notable lack of diligence in following through on discovery efforts. State v. Kull, 298 Or 38, 688 P2d 1327 (1984)

 

LAW REVIEW CITATIONS: 18 WLR 291 (1982)

 

      135.873

 

NOTES OF DECISIONS

 

      It was error to issue protective order where state affidavit failed to establish required “good cause” for doing so but error was harmless because there is little likelihood that disclosure of address of witnesses would have affected result of trial. State v. Pettit, 66 Or App 575, 675 P2d 183 (1984), Sup Ct review denied

 

      Trial court had authority upon defendant’s request to order district attorney’s file to be copied and sealed when defendant showed good cause for preserving evidence of what was in file at that time. State v. Crenshaw, 307 Or 160, 764 P2d 1372 (1988)

 

      Trial judge’s duty to undertake in camera inspection of Children’s Services Division case records cannot be delegated to party or to party’s counsel. State ex rel Carlile v. Lewis, 310 Or 541, 800 P2d 786 (1990)

 

      Trial court may not delegate its duty to review in camera Children’s Services Division file to district attorney prosecuting criminal case or to any person who lacks access to everything in file. State ex rel Dugan v. Tiktin, 313 Or 607, 837 P2d 959 (1992)

 

      135.881 to 135.901

 

NOTES OF DECISIONS

 

      When district attorney terminates diversion and the existence of findings on the termination is disputed, the court must provide a procedure for determining whether the requisite facts exist. State ex rel Harmon v. Blanding, 292 Or 752, 644 P2d 1082 (1982)

 

      135.886

 

NOTES OF DECISIONS

 

      Under this section, district attorney had discretion to decide that persons charged with Class A felonies would not be diverted. State ex rel Anderson v. Haas, 43 Or App 169, 602 P2d 346 (1979), Sup Ct review denied

 

      135.901

 

NOTES OF DECISIONS

 

      When district attorney terminates diversion the court is not required to hold an evidentiary hearing for judicial factfinding, but a lesser procedure adequate for a fair determination of the existence of the requisite facts must be provided. State ex rel Harmon v. Blanding, 292 Or 752, 644 P2d 1082 (1982)

 

      135.907

 

 

NOTE: Repealed as of April 21, 2017

 

 

 

NOTES OF DECISIONS

 

      Defendant is not eligible for diversion if offense is defendant’s first offense of unlawful possession, in public place, of less than one ounce of marijuana within 1,000 feet of school. State v. Durham, 245 Or App 58, 263 P3d 1030 (2011)

 

      135.970

 

NOTES OF DECISIONS

 

      Private investigator working for defense attorney is not obligated to inform victim of victim’s right to refuse interview with defense. Johnson v. Department of Public Safety Standards and Training, 253 Or App 307, 293 P3d 228 (2012)