2015 ORS 132.560¹
Joinder of counts and charges
  • consolidation of charging instruments

(1) A charging instrument must charge but one offense, and in one form only, except that:

(a) Where the offense may be committed by the use of different means, the charging instrument may allege the means in the alternative.

(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:

(A) Of the same or similar character;

(B) Based on the same act or transaction; or

(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

(2) If two or more charging instruments are found in circumstances described in subsection (1)(b) of this section, the court may order them to be consolidated.

(3) If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.

(4) As used in this section, "charging instrument" means any written instrument sufficient under the law to charge a person with an offense, and shall include, but not be limited to, grand jury indictments, informations, complaints and uniform traffic, game or boating complaints. [Amended by 1989 c.842 §1; 1993 c.278 §1; 1999 c.1040 §17]

Notes of Decisions

Charges may be joined when con­duct or acts are concatenated in time, place and circumstances and the evidence of one charge would be relevant and admissible without the evidence of the other charges. State v. Darroch, 8 Or App 32, 492 P2d 308 (1971), aff'd264 Or 54, 504 P2d 84; State v. Huennekens, 245 Or 150, 420 P2d 384 (1966); distinguished in State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

Where a greater of­fense includes a lesser one, an indict­ment charging both is not defective. State v. McCauley, 8 Or App 571, 494 P2d 438 (1972), Sup Ct review denied

Where defendant desired to testify on own behalf re­gard­ing one case, but wished to invoke right not to testify in other case, joinder was prejudicial to defendant. State v. Eusted, 12 Or App 351, 507 P2d 60 (1973)

Two or More Crimes Are Part of Single Transac­tion When

1) they are closely linked in time, place and circumstances; and 2) evidence of some or all of the ele­ments of one crime would be admissible at trial on other charges because presenta­tion of the evidence concerning the charges on trial would necessarily include evidence of some or all of ele­ments of other crimes. State v. Sanchez, 14 Or App 234, 511 P2d 1231 (1973), Sup Ct review denied

If charges are improperly joined under this sec­tion, defendant should demur under ORS 135.630 (Grounds of demurrer), move for separate trials, move to withdraw improperly joined charges from jury or move for mistrial. State v. Sanchez, 14 Or App 234, 511 P2d 1231 (1973), Sup Ct review denied

If defendant is not prejudiced by misjoinder, his con­vic­­tions will not be reversed. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

The indict­ment was good against a demurrer but the court erred in not requiring the state to elect when it became apparent that the two of­fenses were not part of the same transac­tion. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973); State v. Shields, 280 Or 471, 571 P2d 892 (1977)

Two charges arise out of the same act or transac­tion if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

Defendant's mo­tion for separate trials waived any double jeopardy claim. State v. Browne, 16 Or App 177, 517 P2d 1224 (1974)

A single act may be an of­fense against two statutes; and if each statute requires proof of an addi­tional fact which the other does not, an acquittal, or con­vic­­tion, under either statute, does not exempt the defendant from pros­e­cu­­tion and punish­ment under the other. State v. Macomber, 18 Or App 163, 524 P2d 574 (1974); State v. Ortega, 20 Or App 345, 531 P2d 756 (1975)

Where two crim­i­nal charges may have been improperly joined there is no prejudice if the trial court sen­tences the defendant only on the greater charge and vacates sen­tence on the lesser charge. State v. Overcross, 18 Or App 300, 525 P2d 176 (1974), Sup Ct review denied

Defense attorney's representa­tion to opposing counsel that he would oppose consolida­tion waived the right to consolidate. State v. Roach, 19 Or App 148, 526 P2d 1402 (1974)

For purposes of charging more than one of­fense in charging instru­ment, based on same transac­tion has same meaning that "same crim­i­nal episode" has for barring separate crim­i­nal pros­e­cu­­tions under ORS 131.515 (Previous prosecution). State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

When an indict­ment purports to charge theft in the first de­gree and alleges sufficient facts to do so, an alternative charge of a lower de­gree of theft arising from the same con­duct may be properly alleged in the same count. State v. Stapleton, 27 Or App 389, 556 P2d 156 (1976)

Demurrer was improperly allowed to indict­ment which charged con­spir­a­cy to commit burglary in first de­gree in Count I and "as part of the same act and transac­tion alleged in Count I" con­spir­a­cy to commit custodial in­ter­fer­ence in first de­gree, because indict­ment charged two separate and distinct conspiracies. State v. Mathie, 42 Or App 571, 600 P2d 961 (1979), Sup Ct review denied; 54 Or App 232, 634 P2d 799 (1981), Sup Ct review denied

In pro­ceed­ing against defendant for fraudulent sale of securities, where defendant first sold securities to couple and later sold to couple's sons, and sons did not talk directly to defendant but relied upon defendant's representa­tions as related to them by their parents, there was sufficient factual interrela­tion among charges in three indict­ments to support consolida­tion for trial. State v. Parrish, 45 Or App 99, 607 P2d 778 (1980)

Where trial court severs counts in one crim­i­nal indict­ment, there will be separate trials for separate of­fenses and judg­ments in each case are final with notice of ap­peal from one not affecting trial court's jurisdic­tion over remaining charges. State v. Smith, 100 Or App 284, 785 P2d 1081 (1990)

Even though this sec­tion has no applica­tion to traffic complaints, defendant waived objec­tion to that applica­tion, and court did not err in holding that joinder of five traffic of­fenses, all major traffic crimes occurring in same county were of same or similar character. State v. Meyer, 109 Or App 598, 820 P2d 861 (1991), Sup Ct review denied

Denial of mo­tion for severance is reviewed for abuse of discre­tion, and in order to prevail defendant must show substantial prejudice. State v. Meyer, 109 Or App 598, 820 P2d 861 (1991), Sup Ct review denied

Where defendant committed crime before 1989 amend­ment to this sec­tion but trial took place after amend­ment became effective, court was correct in applying amended version of statute. State v. Hill, 111 Or App 629, 826 P2d 122 (1992)

Trial court did not abuse its discre­tion by consolidating three indict­ments that charged defendant with sexual con­duct with male children brought into defendant's home for adop­tion. State v. Rood, 118 Or App 480, 848 P2d 128 (1993), Sup Ct review denied

Mo­tion to consolidate does not require that trial court con­duct OEC 403 balancing analysis. State v. Parker, 119 Or App 105, 849 P2d 1157 (1993), Sup Ct review denied

Consolida­tion of indict­ments for of­fenses committed in separate crim­i­nal episodes does not make sen­ten­cing for of­fenses subject to 200/400 percent limita­tion on consecutive sen­tences. State v. Flower, 128 Or App 83, 874 P2d 1359 (1994), Sup Ct review denied

Trial court determina­tion whether joinder of of­fenses in single trial causes prejudice is subject to appellate review under error of law standard. State v. Miller, 327 Or 622, 969 P2d 1006 (1998)

Acts or transac­tions are connected together or part of common scheme or plan if interlocking facts create logical rela­tionship between of­fenses and large area of overlapping proof. State v. Johnson, 199 Or App 305, 111 P3d 784 (2005), Sup Ct review denied

Charges were "connected together" by temporal, spatial and investigatory nexus, as re­quired to permit joinder under this sec­tion, where evidence showed that defendant possessed marijuana at same time and in same space that defendant harassed victim, that evidence of both charges was discovered in same police search and that same ma­te­ri­al witnesses were re­quired to try both of­fenses. State v. Dewhitt, 276 Or App 373, 368 P3d 27 (2016), Sup Ct review denied

When read with ORS 135.630 (Grounds of demurrer), this sec­tion requires charging instru­ment that charges multiple crimes to allege basis for joinder in language of this sec­tion or with facts that are sufficient to es­tab­lish compliance with this sec­tion. State v. Poston, 277 Or App 137, 370 P3d 904 (2016)

Law Review Cita­tions

53 OLR 102, 103, 110, 111 (1973); 55 OLR 368-374 (1976); 66 OLR 953 (1987); 70 OLR 112 (1991)

Law Review Cita­tions

2 EL 230-274 (1971)

Chapter 132

Notes of Decisions

A circuit court has no authority to order the wholesale recorda­tion and preserva­tion of grand jury testimony under either statutory or common law. State ex rel Johnson v. Roth, 276 Or 883, 557 P2d 230 (1976)

Where defendant was found in contempt for failure to comply with grand jury sub­poe­na, circuit court had no authority to examine grand jury testimony or discuss its content for the sole purpose of determining the sen­tence to impose. State v. Applegate, 41 Or App 287, 597 P2d 1290 (1979), Sup Ct review denied


1 Legislative Counsel Committee, CHAPTER 132—Grand Jury, Indictments and Other Accusatory Instruments, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors132.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 132, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano132.­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.