State v. Dolan

595 P.2d 836, 40 Or. App. 447, 1979 Ore. App. LEXIS 2145

• Court: Court of Appeals of Oregon
• Decided: May 29, 1979
• Docket: No. DA 153180-7807, CA 12976
• Status: Published

Opinions

RICHARDSON, J.

The state appeals an order sustaining defendant’s demurrer and setting aside a criminal complaint charging defendant with disorderly conduct, ORS 166.025(l)(a), in the following language:

"The said defendant, on or about July 11,1978, in Multnomah County, State of Oregon, did unlawfully and recklessly create a risk of public inconvenience, annoyance and alarm by engaging in tumultuous behavior * *

The sole ground of demurrer was that the complaint

«* * * js not definite and certain in that it does not sufficiently inform the defendant what conduct he is supposed to have performed that is alleged to be against the law, nor where and when this conduct took place.”

The state contended in the trial court and urges here that the demurrer was not timely and should not have been considered by the court. We agree and reverse.

Defendant first appeared in response to this charge on July 13, 1978. He appeared without counsel. The charge was read to him and he was advised of certain rights including the right to appointed counsel. Upon his request, the court appointed an attorney to represent him and continued the case until July 14, 1978, for appearance of defendant and his appointed counsel. On that day defendant appeared with his attorney and entered a plea of not guilty. The case was continued to August 18, 1978, for pretrial conference. Defendant’s attorney filed a request for a jury trial on August 18, 1978, and was given the trial date of October 20, 1978. For reasons which do not appear in the record, the case was not tried on that date. Defendant filed the demurrer, which is the subject of this appeal, on November 24, 1978. Hearing on the demurrer was held December 5, 1978, and the demurrer was sustained.

During the hearing, the state objected to consideration of the demurrer on the grounds it was not filed prior to or at arraignment and that the defendant waived a challenge to the specificity of the complaint by his plea of not guilty.

The appellate courts of Oregon have consistently held that a challenge on the grounds that the accusatory instrument lacks definiteness and certainty is waived if made after a plea to the merits of the complaint. State of Oregon v. Holland, 202 Or 656, 277 P2d 386 (1954); State v. Smith, 182 Or 497, 188 P2d 998 (1948); State v. Du Bois, 175 Or 341, 153 P2d 521 (1944); State v. Estabrook, 162 Or 476, 91 P2d 838 (1939); State v. Miller, 119 Or 409, 243 P 72 (1926); State v. Goodall, 82 Or 329, 160 P 595 (1916); State v. South, 29 Or App 873, 565 P2d 771 (1977); State v. Kennedy, 6 Or App 552, 488 P2d 819 rev den (1971); State v. Hunt, 3 Or App 634, 475 P2d 596 rev den(1970).

ORS 135.610(1) provides:

"The demurrer shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.”

Arraignment, as described in ORS 135.020, includes asking defendant how he pleads to the accusatory instrument. He is thus allowed by statute to demurrer up to the time a plea is entered on the merits of the charge. Presumably, if a defendant enters a plea to the charge it is sufficiently definite and certain for that purpose. Having pleaded to the charge, he waives a challenge as to definiteness and certainty. ORS 135.640 provides a specific exception to waiver when objection to the accusatory instrument is on the grounds of jurisdiction of the court over the subject matter, or that the facts stated do not constitute an offense. In those two instances the demurrer may be taken under the plea of not guilty and in arrest of judgment. This is a legislative acceptance of the principal of waiver by a plea to the accusatory instrument except in the two specific instances set out in the statute.

Absent exceptional circumstances, see State v. South, supra, after a plea to the merits of the complaint, a court is without authority to entertain a demurrer except on the two specific grounds set out in ORS 135.640. It is not a question of discretion to allow an untimely filing of the demurrer. It is a matter of applying the correct legal principal, i.e., that a plea to the accusatory instrument waives the objection that it is not definite and certain. Defendant has established no exceptional circumstances which would negate his waiver. At the time he entered his plea of not guilty defendant was represented by counsel. There was no request for continuance to review the complaint prior to entry of a plea. By his plea defendant waived objections to the complaint on the ground specified in his demurrer and the court was without authority to sustain it.

Reversed and remanded for trial.