ORS 135.670¹
Allowance of demurrer

(1) If the demurrer is allowed, the judgment is final upon the accusatory instrument demurred to and is a bar to another action for the same crime unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new accusatory instrument, allows the case to be resubmitted or refiled.

(2) If the court allows the case to be resubmitted or refiled, it must be resubmitted or refiled by the state within 30 days from the date on which the court enters the order. If the case is not resubmitted or refiled within that time, the defendant shall be discharged from custody or the release agreement discharged or the security deposit returned as provided in ORS 135.680 (Failure to resubmit case after allowance of demurrer). [Amended by 1973 c.836 §186]

Notes of Decisions

Where a demurrer was allowed and thus acted as a bar, two alternatives were presented to the complaining party: (1) It could have sought the district court's permission to refile under this sec­tion; or (2) it could have ap­pealed the order to the circuit court. State v. Brent, 23 Or App 262, 541 P2d 1313 (1975)

Filing of new complaint after granting demurrer with leave to submit or refile under this sec­tion marks initia­tion of new ac­tion requiring per­sonal service. State v. Picard, 37 Or App 483, 587 P2d 514 (1978)

Where leave to refile is granted, ac­tion may be refiled in different court having jurisdic­tion. State v. Goakey, 47 Or App 31, 613 P2d 1074 (1980), Sup Ct review denied

Statute and city ordinance charge "same crime" within meaning of this sec­tion if they make same con­duct crim­i­nal in similar language, regardless of whether they impose different penalties. State v. Stevenson, 79 Or App 166, 718 P2d 766 (1986), Sup Ct review denied

This sec­tion does not require state to seek leave from trial court to refile accusatory instru­ment at time demurrer to original instru­ment is allowed. State v. Mo­line, 104 Or App 173, 800 P2d 299 (1990); State v. Harrison, 125 Or App 472, 865 P2d 482 (1993), as modified by 126 Or App 495, 870 P2d 230 (1994), Sup Ct review denied

Failure to resubmit case within 30-day time limit in this sec­tion is not bar to further pros­e­cu­­tion. State v. Mo­line, 104 Or App 173, 800 P2d 299 (1990); State v. Harrison, 125 Or App 472, 865 P2d 482 (1993), as modified by 126 Or App 495, 870 P2d 230 (1994), Sup Ct review denied

Elec­tion by state to ap­peal granting of demurrer does not bar later reindict­ment. State v. Harrison, 125 Or App 472, 865 P2d 482 (1993), as modified by 126 Or App 495, 870 P2d 230 (1994), Sup Ct review denied

§§ 135.610 (Demurrer) to 135.700 (Disallowance of demurrer)

Law Review Cita­tions

2 EL 230-274 (1971)

1 Legislative Counsel Committee, CHAPTER 135—Arraignment and Pretrial Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­135.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 135, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­135ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
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.
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