2017 ORS 138.060¹
(Title not available: statute has been repealed or renumbered.)

[Amended by 1963 c.385 §1; 1969 c.198 §64; 1969 c.529 §1; 1971 c.644 §1; 1973 c.836 §276; 1977 c.752 §2; 1989 c.790 §21a; 1997 c.852 §11; 1999 c.946 §2; 2001 c.870 §4; 2011 c.379 §1; 2017 c.529 §4; renumbered 138.045 (Appeal by state) in 2017]

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 (Omnibus hearing), 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)

1 Legislative Counsel Committee, CHAPTER 138—Conviction Relief, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors138.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano138.­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.