ORS 135.670
Allowance of demurrer


(1)

If the demurrer is allowed, the judgment is final upon the accusatory instrument demurred to and is a bar to another action for the same crime unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new accusatory instrument, allows the case to be resubmitted or refiled.

(2)

If the court allows the case to be resubmitted or refiled, it must be resubmitted or refiled by the state within 30 days from the date on which the court enters the order. If the case is not resubmitted or refiled within that time, the defendant shall be discharged from custody or the release agreement discharged or the security deposit returned as provided in ORS 135.680 (Procedure if resubmission of case not allowed). [Amended by 1973 c.836 §186]

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

§§ 135.610 to 135.700

Law Review Citations

2 EL 230-274 (1971)


Source
Last accessed
May. 15, 2020