Grand Jury, Indictments and Other Accusatory Instruments

ORS 132.560
Joinder of counts and charges

  • consolidation of charging instruments


(1)

A charging instrument must charge but one offense, and in one form only, except that:

(a)

Where the offense may be committed by the use of different means, the charging instrument may allege the means in the alternative.

(b)

Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:

(A)

Of the same or similar character;

(B)

Based on the same act or transaction; or

(C)

Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

(2)

If two or more charging instruments are found in circumstances described in subsection (1)(b) of this section, the court may order them to be consolidated.

(3)

If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.

(4)

As used in this section, “charging instrument” means any written instrument sufficient under the law to charge a person with an offense, and shall include, but not be limited to, grand jury indictments, informations, complaints and uniform traffic, game or boating complaints. [Amended by 1989 c.842 §1; 1993 c.278 §1; 1999 c.1040 §17]

Notes of Decisions

Charges may be joined when conduct or acts are concatenated in time, place and circumstances and the evidence of one charge would be relevant and admissible without the evidence of the other charges. State v. Darroch, 8 Or App 32, 492 P2d 308 (1971), aff'd264 Or 54, 504 P2d 84; State v. Huennekens, 245 Or 150, 420 P2d 384 (1966); distinguished in State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

Where a greater offense includes a lesser one, an indictment charging both is not defective. State v. McCauley, 8 Or App 571, 494 P2d 438 (1972), Sup Ct review denied

Where defendant desired to testify on own behalf regarding one case, but wished to invoke right not to testify in other case, joinder was prejudicial to defendant. State v. Eusted, 12 Or App 351, 507 P2d 60 (1973)

Two or More Crimes Are Part of Single Transaction When

1) they are closely linked in time, place and circumstances; and 2) evidence of some or all of the elements of one crime would be admissible at trial on other charges because presentation of the evidence concerning the charges on trial would necessarily include evidence of some or all of elements of other crimes. State v. Sanchez, 14 Or App 234, 511 P2d 1231 (1973), Sup Ct review denied

If charges are improperly joined under this section, defendant should demur under ORS 135.630, move for separate trials, move to withdraw improperly joined charges from jury or move for mistrial. State v. Sanchez, 14 Or App 234, 511 P2d 1231 (1973), Sup Ct review denied

If defendant is not prejudiced by misjoinder, his convictions will not be reversed. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

The indictment was good against a demurrer but the court erred in not requiring the state to elect when it became apparent that the two offenses were not part of the same transaction. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973); State v. Shields, 280 Or 471, 571 P2d 892 (1977)

Two charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

Defendant's motion for separate trials waived any double jeopardy claim. State v. Browne, 16 Or App 177, 517 P2d 1224 (1974)

A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal, or conviction, under either statute, does not exempt the defendant from prosecution and punishment under the other. State v. Macomber, 18 Or App 163, 524 P2d 574 (1974); State v. Ortega, 20 Or App 345, 531 P2d 756 (1975)

Where two criminal charges may have been improperly joined there is no prejudice if the trial court sentences the defendant only on the greater charge and vacates sentence on the lesser charge. State v. Overcross, 18 Or App 300, 525 P2d 176 (1974), Sup Ct review denied

Defense attorney's representation to opposing counsel that he would oppose consolidation waived the right to consolidate. State v. Roach, 19 Or App 148, 526 P2d 1402 (1974)

For purposes of charging more than one offense in charging instrument, based on same transaction has same meaning that "same criminal episode" has for barring separate criminal prosecutions under ORS 131.515. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

When an indictment purports to charge theft in the first degree and alleges sufficient facts to do so, an alternative charge of a lower degree of theft arising from the same conduct may be properly alleged in the same count. State v. Stapleton, 27 Or App 389, 556 P2d 156 (1976)

Demurrer was improperly allowed to indictment which charged conspiracy to commit burglary in first degree in Count I and "as part of the same act and transaction alleged in Count I" conspiracy to commit custodial interference in first degree, because indictment charged two separate and distinct conspiracies. State v. Mathie, 42 Or App 571, 600 P2d 961 (1979), Sup Ct review denied; 54 Or App 232, 634 P2d 799 (1981), Sup Ct review denied

In proceeding against defendant for fraudulent sale of securities, where defendant first sold securities to couple and later sold to couple's sons, and sons did not talk directly to defendant but relied upon defendant's representations as related to them by their parents, there was sufficient factual interrelation among charges in three indictments to support consolidation for trial. State v. Parrish, 45 Or App 99, 607 P2d 778 (1980)

Where trial court severs counts in one criminal indictment, there will be separate trials for separate offenses and judgments in each case are final with notice of appeal from one not affecting trial court's jurisdiction over remaining charges. State v. Smith, 100 Or App 284, 785 P2d 1081 (1990)

Even though this section has no application to traffic complaints, defendant waived objection to that application, and court did not err in holding that joinder of five traffic offenses, all major traffic crimes occurring in same county were of same or similar character. State v. Meyer, 109 Or App 598, 820 P2d 861 (1991), Sup Ct review denied

Denial of motion for severance is reviewed for abuse of discretion, and in order to prevail defendant must show substantial prejudice. State v. Meyer, 109 Or App 598, 820 P2d 861 (1991), Sup Ct review denied

Where defendant committed crime before 1989 amendment to this section but trial took place after amendment became effective, court was correct in applying amended version of statute. State v. Hill, 111 Or App 629, 826 P2d 122 (1992)

Trial court did not abuse its discretion by consolidating three indictments that charged defendant with sexual conduct with male children brought into defendant's home for adoption. State v. Rood, 118 Or App 480, 848 P2d 128 (1993), Sup Ct review denied

Motion to consolidate does not require that trial court conduct OEC 403 balancing analysis. State v. Parker, 119 Or App 105, 849 P2d 1157 (1993), Sup Ct review denied

Consolidation of indictments for offenses committed in separate criminal episodes does not make sentencing for offenses subject to 200/400 percent limitation on consecutive sentences. State v. Flower, 128 Or App 83, 874 P2d 1359 (1994), Sup Ct review denied

Trial court determination whether joinder of offenses in single trial causes prejudice is subject to appellate review under error of law standard. State v. Miller, 327 Or 622, 969 P2d 1006 (1998)

Acts or transactions are connected together or part of common scheme or plan if interlocking facts create logical relationship between offenses and large area of overlapping proof. State v. Johnson, 199 Or App 305, 111 P3d 784 (2005), Sup Ct review denied

Charges were "connected together" by temporal, spatial and investigatory nexus, as required to permit joinder under this section, where evidence showed that defendant possessed marijuana at same time and in same space that defendant harassed victim, that evidence of both charges was discovered in same police search and that same material witnesses were required to try both offenses. State v. Dewhitt, 276 Or App 373, 368 P3d 27 (2016), Sup Ct review denied

When read with ORS 135.630, this section requires charging instrument that charges multiple crimes to allege basis for joinder in language of this section or with facts that are sufficient to establish compliance with this section. State v. Poston, 277 Or App 137, 370 P3d 904 (2016), Sup Ct review denied

Because state did not use exact joinder language of this section in indictment, language specifically connecting compelling prostitution charge to firearm charges or language specifying common scheme or plan between charges, indictment did not allege facts sufficient to establish compliance with this section. State v. Marks, 286 Or App 775, 400 P3d 951 (2017)

Because court could not determine that evidence of defendant's prior felony conviction would be admissible at trial in which defendant was charged only with compelling prostitution, or that evidence related to prostitution activities would be admissible at trial in which defendant was charged only with firearm crimes, trial court's error in disallowing defendant's demurrer based on improper joinder under this section was not harmless. State v. Marks, 286 Or App 775, 400 P3d 951 (2017)

Law Review Citations

53 OLR 102, 103, 110, 111 (1973); 55 OLR 368-374 (1976); 66 OLR 953 (1987); 70 OLR 112 (1991)

§§ 132.510 to 132.590

Law Review Citations

2 EL 230-274 (1971)

Chapter 132

Notes of Decisions

A circuit court has no authority to order the wholesale recordation and preservation of grand jury testimony under either statutory or common law. State ex rel Johnson v. Roth, 276 Or 883, 557 P2d 230 (1976)

Where defendant was found in contempt for failure to comply with grand jury subpoena, circuit court had no authority to examine grand jury testimony or discuss its content for the sole purpose of determining the sentence to impose. State v. Applegate, 41 Or App 287, 597 P2d 1290 (1979), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021