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allow me to try that improper joinder argument again

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by: Ryan • May 17, 2013 • no comments

In my last attempt to explain this issue, I think I did it poorly. So, here's an attempt to keep the issue simple -- and if you'll give me a couple of minutes -- more attractive than it's ever been before.

Per statute, all indictments are supposed to be just one count, and one count only, unless . . . We'll get to the unless in a moment, but for now understand that the default indictment only has one count. ORS 132.560 says: "(1) A charging instrument must charge but one offense, and in one form only. . . ."

There are exceptions. Literally, exceptions ("(1) A charging instrument must charge but one offense, and in one form only, except that:")

If an indictment alleges UUV and PSC, for example, it is in violation of ORS 132.560 unless one of the exceptions applies. But the remedy for an ORS 132.560 offense is dismissal, specifically, a demurrer. And in a demurrer, you can only look at the four corners of the indictment. (All this is in the motion you should already have but if you don't I'd be happy to send it to you.) So how do you know if the exception applies?

You know because the indictment should say, "Count 2: as part of the same act and transaction as count 1, the defendant, JOHN SMITH, on or about May 10, 1999,. . . ."

Some counties do this properly, some do not. Multnomah County does not.

If the indictment itself doesn't somehow demonstrate the exception applies, then the indictment is subject to a demurrer. And it doesn't matter if the prosecutor says, "but judge, the defendant traded the stolen car for drugs, so these are all part of the same act and transaction." Doesn't matter. It doesn't say that in the indictment, and, I submit, the burden is on the state to prove the exception applies, because, again, in evaluating the demurrer, the court can only look at the indictment, not the police reports, not the pc statement, nothing except the indictment.

The same logic applies to Statute of Limitations. If you challenge the SOL, you do so based on the language in the indictment. If the indictment alleges a Theft that occurred four years before it was indicted (when the default or presumptive SOL is 3 years), then it is subject to a demurrer unless the indictment itself alleges the exception ("the theft was only discovered in the past 12 months," for example). (That's why I focus on the "except" language above. When the state is relying on an exception, it's the state's burden, whether on SOL or a multi-count indictment, to include language that shows the exception applies.)

So, I would recommend that even if you believe the counts might be from the same act and transaction or a common scheme or plan, you'll file the demurrer if the language is missing, because maybe you'll win on appeal and all the convictions will be reversed.