Previous prosecution
- when not a bar to subsequent prosecution
Source:
Section 131.525 — Previous prosecution; when not a bar to subsequent prosecution, https://www.oregonlegislature.gov/bills_laws/ors/ors131.html
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Notes of Decisions
The constitutional standard of “manifest necessity” and the statutory standard concerning impossibility to proceed without justice require at least that a trial not be terminated if any reasonable alternative action is possible under the facts of each case. State v. Embry, 19 Or App 934, 530 P2d 99 (1974)
Where defense objected to continuance, unavailability of witnesses due to extraordinary circumstance could justify mistrial on basis of physical impossibility of proceeding. State v. Misten, 26 Or App 681, 554 P2d 584 (1976), Sup Ct review denied
Termination of first trial of defendant because of illness of trial judge was termination for “physical necessity” under this section and did not subject defendant to double jeopardy. State v. Cole, 286 Or 411, 595 P2d 466 (1979)
Where jury’s inability to reach verdict was caused by bailiff’s improper remarks, this section could not be constitutionally applied to permit retrial of defendant. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)
Where juror failed on voir dire to respond to question as to his ability to be impartial but later stated in camera to court and counsel that he could not impartially consider the case, juror was dismissed because of “false statement” within meaning of this section. State v. McFerron, 52 Or App 325, 628 P2d 440 (1981), Sup Ct review denied
Defendant would be twice put in jeopardy if state were allowed to proceed with driving while suspended charge after defendant pleaded guilty to driving under influence of intoxicants charge because defendant’s conduct consisted of single forbidden act of driving. State v. Farley, 301 Or 668, 725 P2d 359 (1986)
Where defendant appealed conviction of driving while suspended on grounds he previously had been placed in jeopardy when convicted of giving false name to police officer during same criminal episode, for constitutional purposes, giving false identification was separate offense from unlawful driving because acts did not occur simultaneously and were not in pursuit of single objective. State v. Ellison, 301 Or 676, 725 P2d 363 (1986)
State is not prohibited from retrying defendant after conviction has been set aside because of procedural error in trial. State v. Mohler, 102 Or App 75, 792 P2d 1239 (1990), overruled on other grounds, 158 Or App 479, 974 P2d 783 (1999)
Defendant’s guilty plea to theft does not bar subsequent prosecution of burglary when requirements of this section are met. State v. Wilson, 115 Or App 217, 836 P2d 1380 (1992)
Granting defendant’s motion for judgment of acquittal during trial on sole ground that indictment did not state facts sufficient to establish crime, did not bar later prosecution. State v. Wolfs, 312 Or 646, 826 P2d 623 (1992)
Where inability of jury to reach verdict is not result of prosecutorial or judicial misconduct, second prosecution does not violate double jeopardy prohibition. State v. Bannister, 118 Or App 252, 846 P2d 1189 (1993)
Finding that jury has failed to reach verdict does not constitute finding that jury is unable to reach verdict as required to nullify attachment of jeopardy and permit retrial. State ex rel Turner v. Frankel, 322 Or 363, 908 P2d 293 (1995)
Administrative order by presiding judge cannot deprive court of jurisdiction so as to render proceeding legally defective. State v. Allbritton, 145 Or App 373, 931 P2d 797 (1996)
Failure to move to vacate prior plea of guilty or judgment waives claim of double jeopardy based on ORS 131.515. State v. Talbert, 153 Or App 594, 958 P2d 902 (1998)
Exception to double jeopardy where jury is unable to reach verdict applies, even in absence of explicit finding by court, where: 1) record demonstrates jury was unable to reach verdict and further deliberation would be unavailing; 2) trial court discharges jury after confirming inability to reach verdict; and 3) record does not disclose any other plausible reason for court to discharge jury at that time. State v. O’Donnell, 192 Or App 234, 85 P3d 323 (2004)
Hung jury exception applies for all subsequent prosecutions described in ORS 131.515, whether for same offense or based on new charges or theories. State v. Toste, 196 Or App 11, 100 P3d 738 (2004), Sup Ct review denied
Law Review Citations
27 WLR 913 (1991)