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The Brown-Poston Demurrer

by: Ryan Scott • September 28, 2023 • no comments

This is from a Brown-Poston demurrer.

SUMMARY OF ARGUMENT

Under current case law, the state must allege the legal basis for joining counts in a mult-count indictment. If the basis for joinder is not properly alleged, the indictment is vulnerable to a demurrer.
Under more recent case law, specifically State v. Brown, 326 Or App 46, 57 (2023), the Court of Appeals has held that, in order for joinder of multiple counts to be proper, each count must be properly joined with every other count. In other words, that A is properly joined with B and B is properly joined with C is not enough to allow joinder in one indictment unless A is also properly joined with C.
In this case, the indictment expressly alleges why some of the counts are properly joined with some of the other counts. However, under Brown, that is not good enough. It is not sufficient to alleged, as here, that “Count 7 (Reckless Driving) was “of the same or similar character and a common scheme and plan as Count 5.” It must set forth in the indictment why count 7 is properly joined with all other counts in the indictment, not merely one other count.

Updated Argument on Gun Minimum

by: Ryan Scott • September 24, 2023 • no comments

Since my last blog post on the gun minimum in mid-August, I have significantly revised my memo that argues that the gun minimum must be imposed on the primary offense and cannot be deferred to a later (and non-M11) count.

I have also added a constitutional argument.

Be forewarned that cutting and pasting have made the formatting a bit wonky, but with that caveat, here is the substance of the argument:

→ continue reading...

Upward Departures

by: Ryan Scott • September 13, 2023 • no comments

Meg Huntington will be presenting on the law on upward departures this weekend at the OCDLA Conference in Newport. The materials for the conference have been made available to all attendees. I can tell you that her materials are very thorough, and there is no doubt that when I receive an upward departure notice in the future, I will be comparing the alleged factors to her materials. If you are unable to go to the conference, you should nevertheless order her materials. They are that useful.




Next 20 Articles

Case Reviews


Oregon Court of Appeals, September 20th, 2023

by: Rankin Johnson

DOUBLE JEOPARDY - Retrials

APPELLATE PROCEDURE - Proceedings on remand

SENTENCING - Sentencing credits

PRESERVATION - Waiver

→ read the full summaries...

Oregon Court of Appeals, September 13th, 2023

by: Rankin Johnson

JURY TRIALS - Juror questions

JURY UNANIMITY - Voluntariness

SEARCH AND SEIZURE - Privacy interest

POST-CONVICTION RELIEF - Actual innocence

PLEA AGREEMENTS - Agreement not to seek review

USING A CHILD IN A SEXUALLY EXPLICIT DISPLAY - Lewd images

→ read the full summaries...

Oregon Court of Appeals, September 6th, 2023

by: Rankin Johnson

PROBATION - Polygraphs as probation condition

RESTITUTION - Reasonableness of bills

→ read the full summaries...

Oregon Court of Appeals, August 30th, 2023

by: Rankin Johnson

DUII - Statutory counterparts

EVIDENCE - Vouching

INEFFECTIVE ASSISTANCE OF COUNSEL - Mitigation

→ read the full summaries...

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