2017 ORS 131.535¹
Proceedings not constituting acquittal

The following proceedings will not constitute an acquittal of the same offense:

(1) If the defendant was formerly acquitted on the ground of a variance between the accusatory instrument and the proof; or

(2) If the accusatory instrument was:

(a) Dismissed upon a demurrer to its form or substance;

(b) Dismissed upon any pretrial motion; or

(c) Discharged for want of prosecution without a judgment of acquittal. [1973 c.836 §29; 2001 c.104 §43]

See also annota­tions under ORS 135.890 in permanent edi­tion.

Notes of Decisions

This sec­tion permits pros­e­cu­­tion for two of­fenses arising out of the same transac­tion which may in fact be the same of­fense, if defendant is acquitted of the first charge on the ground of variance between the indict­ment and the proof. State v. Ayers, 16 Or App 655, 520 P2d 449 (1974), Sup Ct review denied

Termina­tion of defendant’s first trial because of the illness of the trial judge was termina­tion for “physical necessity” under this sec­tion and did not subject the defendant to double jeopardy. State v. Cole, 286 Or 411, 595 P2d 466 (1979)

Acquittal based on improper venue is analogous to one grounded on variance between accusatory instru­ment and proof so that repros­e­cu­­tion is not barred. State v. Garcia, 74 Or App 649, 704 P2d 544 (1985), Sup Ct review denied

This sec­tion, in providing that acquittal on basis of variance between accusatory instru­ment and proof does not constitute acquittal for double jeopardy purposes, does not violate double jeopardy clauses of Oregon and federal constitu­tions. State v. Helander, 92 Or App 108, 758 P2d 359 (1988)

Law Review Cita­tions

10 WLJ 30 (1973)

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 (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 131, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano131.­html (2017) (last ac­cessed Mar. 30, 2018).
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.