State v. Borders

496 P.2d 243, 9 Or. App. 385, 1972 Ore. App. LEXIS 985

• Court: Court of Appeals of Oregon
• Decided: April 27, 1972
• Docket: 19395
• Status: Published

Opinions

SCHWAB, C.J.

This is an appeal by the state from an order dismissing a misdemeanor indictment for assault and battery. While a misdemeanor charge was pending against the defendant in the justice court in Clatskanie, Oregon, defendant was indicted by a Columbia County grand jury for the same act. The trial in justice court was set for October 4, 1971. On September 29, 1971, the state moved for a continuance. The justice of the peace did not grant a continuance, but granted the defendant’s oral motion for dismissal by entry of the following order:

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“The above entitled matter coming on for hearing on the motion of the State of Oregon for a continuance, and the State having stated to the Court that it did not wish to try the matter in Clatskanie, and was not ready to try it, and the defendant having filed an affidavit to the effect that it had supoenaed [sic] 11 witnesses for the impending trial and it appearing to the Court that the continuance should not be granted; It is hereby

“ORDERED that the States [sic] motion for a continuance be and hereby is denied.

“The Defendant having moved for an order of dismissal and good cause therefore appearing: it is hereby

“ORDERED that the complaint herein shall be and hereby is dismissed.

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No question is raised as to whether this order was untimely or an abuse of discretion. Thereafter, on November 1, 1971, defendant moved the circuit court for a dismissal of the indictment under ORS 134.140 (2) which provides:

“An order for the dismissal of a charge or action, as provided in OES 134.010 to OES 134.160, is a bar to another prosecution for the same crime if the crime is a misdemeanor; but it is not a bar if the crime charged is a felony.”

The state appeals from the order of the circuit court granting the motion and dismissing the indictment. It appears from the wording of the justice court’s order that the justice of the peace dismissed the complaint before him because he anticipated a delay in bringing the defendant to trial, and that in so doing he probably relied on OES 134.120, which states:

“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial within a reasonable period of time, the court shall order the indictment to be dismissed.”

While it might well be argued that OES 134.120 applies only to crimes charged by indictment rather than by complaint, the Supreme Court of Oregon has held that the dismissal for want of prosecution of a misdemeanor complaint is a bar to further prosecution for the same offense. State v. Mayes, 245 Or 179, 421 P2d 385 (1966). In Mayes the defendant was charged with violation of a city ordinance (driving while under the influence of intoxicating liquor) which was ultimately dismissed for want of prosecution. Thereafter, the state sought to charge the defendant for the same misdemeanor under state law. The Supreme Court held that the dismissal of the “city” charge was a bar to a subsequent prosecution under state statute, stating:

“We hold that OES 134.140 (2) applies alike to city and state prosecutions whenever: (a) the case that was dismissed was a prosecution for an offense which carried the possibility of a jail sentence; and (b) the same facts are alleged in both prosecutions.” 245 Or at 183.

Affirmed.