Preliminary Provisions

ORS 131.535
Proceedings not constituting acquittal

The following proceedings will not constitute an acquittal of the same offense:


If the defendant was formerly acquitted on the ground of a variance between the accusatory instrument and the proof; or


If the accusatory instrument was:


Dismissed upon a demurrer to its form or substance;


Dismissed upon any pretrial motion; or


Discharged for want of prosecution without a judgment of acquittal. [1973 c.836 §29; 2001 c.104 §43]

See also annotations under ORS 135.890 in permanent edition.

Notes of Decisions

This section permits prosecution for two offenses arising out of the same transaction which may in fact be the same offense, if defendant is acquitted of the first charge on the ground of variance between the indictment and the proof. State v. Ayers, 16 Or App 655, 520 P2d 449 (1974), Sup Ct review denied

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

Acquittal based on improper venue is analogous to one grounded on variance between accusatory instrument and proof so that reprosecution is not barred. State v. Garcia, 74 Or App 649, 704 P2d 544 (1985), Sup Ct review denied

This section, in providing that acquittal on basis of variance between accusatory instrument and proof does not constitute acquittal for double jeopardy purposes, does not violate double jeopardy clauses of Oregon and federal constitutions. State v. Helander, 92 Or App 108, 758 P2d 359 (1988)

Law Review Citations

10 WLJ 30 (1973)

§§ 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)


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Jun. 26, 2021