Preliminary Provisions

ORS 131.525
Previous prosecution

  • when not a bar to subsequent prosecution


(1)

A previous prosecution is not a bar to a subsequent prosecution when the previous prosecution was properly terminated under any of the following circumstances:

(a)

The defendant consents to the termination or waives, by motion, by an appeal upon judgment of conviction, or otherwise, the right to object to termination.

(b)

The trial court finds that a termination, other than by judgment of acquittal, is necessary because:

(A)

It is physically impossible to proceed with the trial in conformity with law; or

(B)

There is a legal defect in the proceeding that would make any judgment entered upon a verdict reversible as a matter of law; or

(C)

Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the state; or

(D)

The jury is unable to agree upon a verdict; or

(E)

False statements of a juror on voir dire prevent a fair trial.

(c)

When the former prosecution occurred in a court which lacked jurisdiction over the defendant or the offense.

(d)

When the subsequent prosecution was for an offense which was not consummated when the former prosecution began.

(2)

A plea of guilty or resulting judgment is not a bar under ORS 131.515 (Previous prosecution) (2) to a subsequent prosecution under an accusatory instrument which is filed no later than 30 days after entry of the guilty plea. The defendant’s prior plea of guilty or resulting judgment, notwithstanding ORS 135.365 (Withdrawal of plea of guilty or no contest), shall be vacated upon motion by the defendant if made within 30 days after defendant’s arraignment for the subsequent prosecution. The provisions of ORS 135.445 (Withdrawn plea or statement not admissible) apply to such a vacated plea or resulting judgment and any statements made in relation to those proceedings. [1973 c.836 §28; 1983 c.509 §2]

Notes of Decisions

The constitutional standard of "manifest necessity" and the statutory standard concerning impossibility to proceed without justice require at least that a trial not be terminated if any reasonable alternative action is possible under the facts of each case. State v. Embry, 19 Or App 934, 530 P2d 99 (1974)

Where defense objected to continuance, unavailability of witnesses due to extraordinary circumstance could justify mistrial on basis of physical impossibility of proceeding. State v. Misten, 26 Or App 681, 554 P2d 584 (1976), Sup Ct review denied

Termination of first trial of defendant because of illness of trial judge was termination for "physical necessity" under this section and did not subject defendant to double jeopardy. State v. Cole, 286 Or 411, 595 P2d 466 (1979)

Where jury's inability to reach verdict was caused by bailiff's improper remarks, this section could not be constitutionally applied to permit retrial of defendant. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

Where juror failed on voir dire to respond to question as to his ability to be impartial but later stated in camera to court and counsel that he could not impartially consider the case, juror was dismissed because of "false statement" within meaning of this section. State v. McFerron, 52 Or App 325, 628 P2d 440 (1981), Sup Ct review denied

Defendant would be twice put in jeopardy if state were allowed to proceed with driving while suspended charge after defendant pleaded guilty to driving under influence of intoxicants charge because defendant's conduct consisted of single forbidden act of driving. State v. Farley, 301 Or 668, 725 P2d 359 (1986)

Where defendant appealed conviction of driving while suspended on grounds he previously had been placed in jeopardy when convicted of giving false name to police officer during same criminal episode, for constitutional purposes, giving false identification was separate offense from unlawful driving because acts did not occur simultaneously and were not in pursuit of single objective. State v. Ellison, 301 Or 676, 725 P2d 363 (1986)

State is not prohibited from retrying defendant after conviction has been set aside because of procedural error in trial. State v. Mohler, 102 Or App 75, 792 P2d 1239 (1990), overruled on other grounds, 158 Or App 479, 974 P2d 783 (1999)

Defendant's guilty plea to theft does not bar subsequent prosecution of burglary when requirements of this section are met. State v. Wilson, 115 Or App 217, 836 P2d 1380 (1992)

Granting defendant's motion for judgment of acquittal during trial on sole ground that indictment did not state facts sufficient to establish crime, did not bar later prosecution. State v. Wolfs, 312 Or 646, 826 P2d 623 (1992)

Where inability of jury to reach verdict is not result of prosecutorial or judicial misconduct, second prosecution does not violate double jeopardy prohibition. State v. Bannister, 118 Or App 252, 846 P2d 1189 (1993)

Finding that jury has failed to reach verdict does not constitute finding that jury is unable to reach verdict as required to nullify attachment of jeopardy and permit retrial. State ex rel Turner v. Frankel, 322 Or 363, 908 P2d 293 (1995)

Administrative order by presiding judge cannot deprive court of jurisdiction so as to render proceeding legally defective. State v. Allbritton, 145 Or App 373, 931 P2d 797 (1996)

Failure to move to vacate prior plea of guilty or judgment waives claim of double jeopardy based on ORS 131.515. State v. Talbert, 153 Or App 594, 958 P2d 902 (1998)

Exception to Double Jeopardy Where Jury Is Unable to Reach Verdict Applies, Even In Absence of Explicit Finding By Court, Where

1) record demonstrates jury was unable to reach verdict and further deliberation would be unavailing; 2) trial court discharges jury after confirming inability to reach verdict; and 3) record does not disclose any other plausible reason for court to discharge jury at that time. State v. O'Donnell, 192 Or App 234, 85 P3d 323 (2004)

Hung jury exception applies for all subsequent prosecutions described in ORS 131.515, whether for same offense or based on new charges or theories. State v. Toste, 196 Or App 11, 100 P3d 738 (2004), Sup Ct review denied

Law Review Citations

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