Preliminary Provisions

ORS 131.505
Definitions for ORS 131.505 to 131.525


As used in ORS 131.505 (Definitions for ORS 131.505 to 131.525) to 131.525 (Previous prosecution), unless the context requires otherwise:

(1)

“Conduct” and “offense” have the meaning provided for those terms in ORS 161.085 (Definitions with respect to culpability) and 161.505 (“Offense” described).

(2)

When the same conduct or criminal episode violates two or more statutory provisions, each such violation constitutes a separate and distinct offense.

(3)

When the same conduct or criminal episode, though violating only one statutory provision, results in death, injury, loss or other consequences of two or more victims, and the result is an element of the offense defined, there are as many offenses as there are victims.

(4)

“Criminal episode” means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.

(5)

A person is “prosecuted for an offense” when the person is charged therewith by an accusatory instrument filed in any court of this state or in any court of any political subdivision of this state, and when the action either:

(a)

Terminates in a conviction upon a plea of guilty, except as provided in ORS 131.525 (Previous prosecution) (2);

(b)

Proceeds to the trial stage and the jury is impaneled and sworn; or

(c)

Proceeds to the trial stage when a judge is the trier of fact and the first witness is sworn.

(6)

There is an “acquittal” if the prosecution results in a finding of not guilty by the trier of fact or in a determination that there is insufficient evidence to warrant a conviction. [1973 c.836 §26; 1983 c.509 §1; 2001 c.104 §42]

Notes of Decisions

Defendant's motion to dismiss the charge on the basis of double jeopardy after he had been tried and convicted was properly overruled since the double jeopardy clause does not attach at this stage of the proceedings. State v. Haycraft, 20 Or App 28, 530 P2d 528 (1975), Sup Ct review denied

If the state must prosecute for only one charge because the defendant has voluntarily and unilaterally entered a plea of guilty on another charge, there can be no argument that the state has harassed the defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

Where jury was properly instructed on theft, fact that defendant at one time misplaced or withheld property from 20 different victims was sufficient to constitute 20 separate theft offenses on each of which defendant could be sentenced. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery offenses and defendant was properly sentenced on each conviction. State v. Dellman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied

Evidence that defendant took victim "from one place to another" for purpose of forcible rape was sufficient to support separate convictions for first degree kidnapping and rape. State v. Strickland, 36 Or App 119, 584 P2d 310 (1978)

Where one defendant, at same time and place, withholds property of two or more victims, there are as many offenses as there are victims; each indictment thus charges separate offense and verdict in trial of first indictment does not bar prosecutions under other indictments. State v. Gilbert, 281 Or 101, 574 P2d 313 (1978)

Action charging offense and terminating in guilty plea was "prosecution for offense" for double jeopardy purposes. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipulation and conviction on lesser included offense, so retrial on greater offenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

When trial court has accepted guilty plea, after informing defendant as required by statute and after determining that plea is voluntarily and intelligently made, prosecution of offense has terminated in conviction. State v. Taylor, 62 Or App 220, 660 P2d 690 (1983)

Where defendant fired one shot toward group of three persons, fact that he may have recklessly endangered everyone in vicinity was incidental to act of shooting one person and defendant could be sentenced for only one conviction of recklessly endangering another person in addition to sentence for assault. State v. Wilson, 64 Or App 764, 669 P2d 1179 (1983)

Where defendant filed motion to dismiss charge of possession of controlled substance contending that earlier guilty plea to firearms charge barred further prosecution because simultaneous possession of concealed weapon and controlled substance is part of "same criminal activity," trial court did not err in denying defendant's motion nor was it an abuse of discretion not to allow evidentiary hearing on motion to dismiss because prosecutor lacked knowledge of sufficient fact to prosecute defendant on drug charge at time defendant pleaded guilty to misdemeanor charge. State v. Lowery, 95 Or App 583, 770 P2d 923 (1989)

Defendant's refusals to testify were separate events during different types of hearings at different times and did not constitute "same offense." State v. Nefstad, 99 Or App 12, 781 P2d 358 (1989), Sup Ct review denied

Where each incident requires formation of discrete criminal objective, incidents closely linked in time, place and circumstances can comprise separate criminal episodes. State v. Sparks, 150 Or App 293, 946 P2d 314 (1997), Sup Ct review denied

Where original criminal objective continues throughout duration of conduct, existence of additional criminal objective during part of conduct does not turn events closely related in time, place and circumstances into separate criminal episodes. State v. Kautz, 179 Or App 458, 39 P3d 937 (2002), Sup Ct review denied

Where time, place and commonality of purpose for two offenses are intertwined such that one offense cannot be related without relating details of other offense, offenses arise out of same criminal episode. State v. Norman, 216 Or App 475, 174 P3d 598 (2007)

Where defendant spanked one child then second child in turn, only one criminal episode occurred because defendant's singular criminal objective was to spank children in one act of discipline. State v. Burns, 259 Or App 410, 314 P3d 288 (2013)

Defendant, who killed first victim then killed second victim 12 hours later in order to take over victims' drug business, committed murders in "same criminal episode." Defendant's acts were "continuous and uninterrupted" necessary components to achieving defendant's overarching criminal objective. State v. Tooley, 265 Or App 30, 333 P3d 348 (2014), Sup Ct review denied

Law Review Citations

53 OLR 104 (1973); 59 OLR 346 (1980); 18 WLR 232 (1982); 70 OLR 112 (1991); 27 WLR 913 (1991)

§§ 131.505 to 131.535

Notes of Decisions

Defendant's motion to dismiss the charge on the basis of double jeopardy after he had been tried and convicted was properly overruled since the double jeopardy clause does not attach at this stage of the proceedings. State v. Haycraft, 20 Or App 28, 530 P2d 528 (1975), Sup Ct review denied

If the state must prosecute for only one charge because the defendant has voluntarily and unilaterally entered a plea of guilty on another charge, there can be no argument that the state has harassed the defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

Where jury was properly instructed on theft, fact that defendant at one time misplaced or withheld property from 20 different victims was sufficient to constitute 20 separate theft offenses on each of which defendant could be sentenced. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery offenses and defendant was properly sentenced on each conviction. State v. Dellman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied

Evidence that defendant took victim "from one place to another" for purpose of forcible rape was sufficient to support separate convictions for first degree kidnapping and rape. State v. Strickland, 36 Or App 119, 584 P2d 310 (1978)

Where one defendant, at same time and place, withholds property of two or more victims, there are as many offenses as there are victims; each indictment thus charges separate offense and verdict in trial of first indictment does not bar prosecutions under other indictments. State v. Gilbert, 281 Or 101, 574 P2d 313 (1978)

Action charging offense and terminating in guilty plea was "prosecution for offense" for double jeopardy purposes. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipulation and conviction on lesser included offense, so retrial on greater offenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

Where defendant fired one shot toward group of three persons, fact that he may have recklessly endangered everyone in vicinity was incidental to act of shooting one person and defendant could be sentenced for only one conviction of recklessly endangering another person in addition to sentence for assault. State v. Wilson, 64 Or App 764, 669 P2d 1179 (1983)

Law Review Citations

53 OLR 104 (1973); 59 OLR 346 (1980); 18 WLR 232 (1982)


Source

Last accessed
Jun. 26, 2021