2015 ORS 131.525¹
Previous prosecution
  • when not a bar to subsequent prosecution

(1) A previous prosecution is not a bar to a subsequent prosecution when the previous prosecution was properly terminated under any of the following circumstances:

(a) The defendant consents to the termination or waives, by motion, by an appeal upon judgment of conviction, or otherwise, the right to object to termination.

(b) The trial court finds that a termination, other than by judgment of acquittal, is necessary because:

(A) It is physically impossible to proceed with the trial in conformity with law; or

(B) There is a legal defect in the proceeding that would make any judgment entered upon a verdict reversible as a matter of law; or

(C) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the state; or

(D) The jury is unable to agree upon a verdict; or

(E) False statements of a juror on voir dire prevent a fair trial.

(c) When the former prosecution occurred in a court which lacked jurisdiction over the defendant or the offense.

(d) When the subsequent prosecution was for an offense which was not consummated when the former prosecution began.

(2) A plea of guilty or resulting judgment is not a bar under ORS 131.515 (Previous prosecution) (2) to a subsequent prosecution under an accusatory instrument which is filed no later than 30 days after entry of the guilty plea. The defendant’s prior plea of guilty or resulting judgment, notwithstanding ORS 135.365 (Withdrawal of plea of guilty or no contest), shall be vacated upon motion by the defendant if made within 30 days after defendant’s arraignment for the subsequent prosecution. The provisions of ORS 135.445 (Withdrawn plea or statement not admissible) apply to such a vacated plea or resulting judgment and any statements made in relation to those proceedings. [1973 c.836 §28; 1983 c.509 §2]

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 (Previous prosecution). 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 (Previous prosecution), 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)

Notes of Decisions

Defendant's mo­tion to dismiss the charge on the basis of double jeopardy after he had been tried and convicted was properly overruled since the double jeopardy clause does not attach at this stage of the pro­ceed­ings. State v. Haycraft, 20 Or App 28, 530 P2d 528 (1975), Sup Ct review denied

If the state must prosecute for only one charge because the defendant has voluntarily and unilaterally entered a plea of guilty on an­oth­er charge, there can be no argu­ment that the state has harassed the defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

Where jury was properly instructed on theft, fact that defendant at one time misplaced or withheld prop­erty from 20 different victims was sufficient to constitute 20 separate theft of­fenses on each of which defendant could be sen­tenced. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery of­fenses and defendant was properly sen­tenced on each con­vic­­tion. State v. Dellman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied

Evidence that defendant took victim "from one place to an­oth­er" for purpose of forcible rape was sufficient to support separate con­vic­­tions for first de­gree kidnapping and rape. State v. Strickland, 36 Or App 119, 584 P2d 310 (1978)

Where one defendant, at same time and place, withholds prop­erty of two or more victims, there are as many of­fenses as there are victims; each indict­ment thus charges separate of­fense and verdict in trial of first indict­ment does not bar pros­e­cu­­tions under other indict­ments. State v. Gilbert, 281 Or 101, 574 P2d 313 (1978)

Ac­tion charging of­fense and terminating in guilty plea was "pros­e­cu­­tion for of­fense" for double jeopardy purposes. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipula­tion and con­vic­­tion on lesser included of­fense, so retrial on greater of­fenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

Where defendant fired one shot toward group of three per­sons, fact that he may have recklessly endangered everyone in vicinity was incidental to act of shooting one per­son and defendant could be sen­tenced for only one con­vic­­tion of recklessly endangering an­oth­er per­son in addi­tion to sen­tence for assault. State v. Wilson, 64 Or App 764, 669 P2d 1179 (1983)

Law Review Cita­tions

53 OLR 104 (1973); 59 OLR 346 (1980); 18 WLR 232 (1982)


1 Legislative Counsel Committee, CHAPTER 131—Preliminary Provisions; Limitations; Jurisdiction; Venue; Criminal Forfeiture; Crime Prevention, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors131.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 131, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano131.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.