Criminal Trials

ORS 136.120
Dismissal when prosecutor unready for trial

  • effect on subsequent prosecution
  • release of defendant


If the defendant appears at the time set for trial and the prosecuting attorney is not ready and does not show sufficient cause for postponing the trial, the court shall dismiss the accusatory instrument unless the court determines that dismissal is not in the public interest.


If the court dismisses the accusatory instrument under subsection (1) of this section and:


The instrument charges a felony or Class A misdemeanor, the dismissal is not a bar to another action for the same offense unless the court so orders.


The instrument charges an offense other than a felony or Class A misdemeanor, the dismissal shall be a bar to another action for the same offense.


If the dismissal is a bar to another action for the same offense, the court shall follow the procedures described in ORS 135.680 (Procedure if resubmission of case not allowed) concerning the defendant’s release. [Amended by 1973 c.836 §228; 2017 c.529 §5]

Notes of Decisions

Refusal to proceed without evidence ruled inadmissible was not a refusal without “sufficient cause.” State v. Hoare, 20 Or App 439, 532 P2d 240 (1975)

Dismissal was the proper remedy where a continuance was denied and the state was not ready to proceed. State v. Martin, 25 Or App 517, 550 P2d 462 (1976)

It was abuse of discretion for court to refuse to grant state five-month continuance until indispensable witness returned from military duty, especially where defendant had already caused delay of over three months. State v. Weitzel, 31 Or App 1093, 572 P2d 334 (1977)

Dismissal of indictment was permissible act of discretion where state had adequate opportunity but failed to locate alleged victim, and there was no prospect in foreseeable future that defendant could be brought to trial. State v. Love, 38 Or App 459, 590 P2d 741 (1979), Sup Ct review denied

Where trial judge continued case until 4:15 because state’s witness had not arrived, and witness arrived at 4:18 but case was not called for trial until 4:20, court had no authority to dismiss charges. State v. Harris, 42 Or App 845, 601 P2d 892 (1979)

Where state requests postponement for purpose of seeking first appellate review of important legal issue, dismissal with prejudice is abuse of discretion absent showing that postponement would result in substantial prejudice to defendant. State v. Hewitt, 162 Or App 47, 985 P2d 884 (1999)

Factors to be considered in determining whether prosecutor has shown sufficient cause for postponing trial are: 1) reason for seeking postponement; 2) whether prosecutor’s conduct constitutes inexcusable neglect; 3) magnitude of interests at stake; 4) whether defendant would suffer actual prejudice; and 5) whether defendant’s right to speedy trial would be compromised. State v. Parliament, 164 Or App 707, 995 P2d 544 (2000)

In deciding whether to dismiss case with prejudice, trial court must consider reason state is unable to try charge and effect court’s dismissal decision will have on defendant and public. State v. Sandbach, 175 Or App 329, 27 P3d 1107 (2001), Sup Ct review denied

Where trial court has suppressed evidence and dismissed case, state cannot successfully appeal suppression order unless state also successfully appeals dismissal. State v. Ferguson, 197 Or App 384, 105 P3d 872 (2005), modified 201 Or App 261, 119 P3d 794 (2005), Sup Ct review denied

Whether prosecutor has shown reasons that objectively justify postponement of trial is determination of law that must precede discretionary determination regarding granting of dismissal. State v. Shaw, 338 Or 586, 113 P3d 898 (2005); State v. Ferguson, 201 Or App 261, 119 P3d 794 (2005), Sup Ct review denied


Last accessed
Mar. 11, 2023