ORS 138.045
Appeal by state


The state may take an appeal from the circuit court, or from a municipal court or a justice court that has become a court of record under ORS 51.025 (Justice court as court of record) or 221.342 (Method by which municipal court becomes court of record), to the Court of Appeals from:


An order made prior to trial dismissing or setting aside one or more counts in the accusatory instrument;


An order allowing a demurrer;


An order arresting the judgment;


An order made prior to trial suppressing evidence;


An order made prior to trial for the return or restoration of things seized;


For a felony committed on or after November 1, 1989, a judgment, amended judgment or corrected judgment of conviction;


For any felony, a judgment, amended judgment, supplemental judgment, corrected judgment or post-judgment order, that denied restitution or awarded less than the amount of restitution requested by the state;


An order or judgment in a probation revocation hearing finding that a defendant who was sentenced to probation under ORS 137.712 (Exceptions to ORS 137) has not violated a condition of probation by committing a new crime;


An order made after a guilty finding dismissing or setting aside one or more counts in the accusatory instrument; or


An order granting a new trial.


Notwithstanding subsection (1) of this section, when the state chooses to appeal an order described in subsection (1)(a), (b) or (d) of this section, the state shall take the appeal to the Supreme Court if the defendant is charged with murder or aggravated murder. [Formerly 138.060]

Notes of Decisions

Failure by state to appeal an order made prior to trial dismissing indictment renders the matter res judicata where the state, rather than appeal the order, attempts to proceed under new indictment charging same crime. State v. Brownlee, 13 Or App 480, 510 P2d 1340 (1973)

Where state appealed from district court’s suppression of evidence but failed to appeal under this section from circuit court’s affirmance of the order of suppression, state may not raise suppression issue in later de novo trial in circuit court. State v. Krey, 18 Or App 22, 523 P2d 600 (1974)

In determining whether the state may appeal an order “suppressing” evidence, the significant factor is whether the order has been made as the result of some pretrial action by the parties. State v. Hoare, 20 Or App 439, 532 P2d 240 (1975)

State may not appeal evidentiary rulings in probation revocation proceedings. State v. Baxley, 27 Or App 73, 555 P2d 782 (1976); State v. Hindman, 125 Or App 434, 866 P2d 481 (1993)

Order is “suppressing evidence” if order results from pretrial action by party objecting to evidence. State v. Koennecke, 274 Or 169, 545 P2d 127 (1976)

Order sustaining demurrer to accusatory instrument without dismissing complaint is appealable. State v. Thomas, 34 Or App 187, 578 P2d 452 (1978)

Where court dismissed information and ordered new trial after jury was unable to reach verdict, dismissal order was “made prior to trial” for purpose of this section. State v. Smith, 35 Or App 511, 582 P2d 26 (1978)

Uniform traffic citation and complaint was “accusatory instrument” within meaning of this section. State v. Riggs, 35 Or App 571, 582 P2d 457 (1978), Sup Ct review denied

Evidence was properly suppressed where affidavit in support of warrant stated that confidential reliable informant was on premises and observed marijuana within past 96 hours, but did not state how much or in whose possession marijuana was seen or prior history of suspects. State v. Kittredge/Anderson, 36 Or App 603, 585 P2d 423 (1978)

Evidence was improperly suppressed where affidavit in support of warrant stated that confidential reliable informant had visited residence weekly over 7 to 8 month period, had seen various kinds of drugs on each occasion, and that informant’s last visit was 3 to 4 weeks ago. State v. Black/Black, 36 Or App 613, 585 P2d 44 (1978), Sup Ct review denied

Circuit court disposition of appeal of municipal court order in arrest of judgment was order of trial court which could be appealed by the city. City of Toledo v. Richards, 40 Or App 71, 549 P2d 422 (1979), Sup Ct review denied

State can appeal from order suppressing evidence, but has no right of appeal from order allowing discovery against it. State v. Langlois, 287 Or 503, 600 P2d 872 (1979); State ex rel Glode v. Branford, 149 Or App 562, 945 P2d 1058 (1997), Sup Ct review denied

Where trial court denied state’s motion for pretrial hearing under ORS 135.037, and trial court dismissed case after state refused to proceed, scope of appeal under this section did not include order preceding dismissal order. State v. Caruso, 289 Or 315, 613 P2d 752 (1980)

Order, resulting from pretrial action of parties, suppressing letter of certification of intoxilyzer machine was appealable by state. State v. Pfortmiller, 53 Or App 394, 632 P2d 459 (1981), Sup Ct review denied

Where state could have raised issue of admissibility of statements for rebuttal purposes at first omnibus hearing, but did not, appeal of suppression of testimony at second hearing did not have to be considered despite fact second order was appealable under this section. State v. Strachan, 60 Or App 513, 654 P2d 1151 (1982)

“Prior to trial” means prior to point in criminal proceeding where jeopardy attaches. State v. Hattersley, 294 Or 592, 660 P2d 674 (1983); State v. Sanchez, 136 Or App 329, 901 P2d 978 (1995), Sup Ct review denied; State v. Summers, 151 Or App 301, 948 P2d 754 (1997)

An order sustaining demurrer to one count of multi-count accusatory instrument is appealable order. State v. Parker, 299 Or 534, 704 P2d 1144 (1985)

Where defendant was tried in municipal court for driving under influence of intoxicants in violation of state statute and municipal court granted defendant’s motion to suppress evidence, circuit court had jurisdiction over plaintiff’s appeal from municipal court and Court of Appeals had jurisdiction over appeal to that court. City of Lake Oswego v. Mylander, 301 Or 178, 721 P2d 433 (1986)

Where trial judge erroneously granted new trial in criminal case, mandamus not available as remedy. State ex rel Schrunk v. Keys, 97 Or App 65, 776 P2d 861 (1989)

Where state had right to appeal evidentiary ruling of admissibility of documents relating to alcohol breath testing equipment, court erred in dismissing complaint prior to appeal. State v. Mueller, 96 Or App 185, 772 P2d 433 (1989)

Election by state to appeal granting of demurrer does not bar later reindictment. State v. Harrison, 125 Or App 472, 865 P2d 482 (1993), modified 126 Or App 495, 870 P2d 230 (1994), Sup Ct review denied

Motion challenging indictment must be made either by pretrial motion to set aside indictment or, in specialized circumstances, by post-trial motion in arrest of judgment. State ex rel Schrunk v. Bonebrake, 318 Or 312, 865 P2d 1289 (1994)

List of orders appealable by state in criminal cases is exclusive. State v. Rietveld, 151 Or App 318, 948 P2d 758 (1997)

“Judgment of conviction” does not include order in probation violation proceeding. State v. Roy, 198 Or App 209, 108 P3d 88 (2005)

Supreme Court has exclusive jurisdiction over all state appeals from pretrial orders dismissing indictment for murder or aggravated murder, including orders dismissing indictment with prejudice and entering judgment of acquittal. State v. Shaw, 338 Or 586, 113 P3d 898 (2005)

When read with [former] ORS 138.222, where trial court convicted defendant of misdemeanor and imposed sentence, state may not appeal under this section that permits state to appeal only felony cases. State v. Nix, 356 Or 768, 345 P3d 416 (2015)

COMPLETED CITATIONS: State v. Miller, 5 Or App 501, 484 P2d 1132 (1971), Sup Ct review denied; State v. Elliott, 6 Or App 249, 486 P2d 1296 (1971), Sup Ct review denied

Law Review Citations

7 WLJ 464 (1971)


Last accessed
Mar. 11, 2023