State v. Haji

Under Article VII (Amended), section 5(6), “The district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form.”

Defendant appealed the Court of Appeals' decision which upheld the trial court’s grant of the State’s motion to amend the indictment and the denial of Defendant’s demurrer.  The Court of Appeals reasoned that the first indictment was defective in “form” under Article VII (Amended), section 5(6) by using the Wimber test articulated in State v. Wimber, 315 Or. 103, 843 P.2d 424 (1992).  Defendant assigned error to the Court of Appeals’ interpretation of the amendment to his indictment and argued that the amendment was defective in substance and therefore violated Article VII (Amended), section 5(6).  Under Article VII (Original), section 18, “defective in form” has been interpreted to mean the indictment lacks non-essential elements which would show a crime was committed and therefore can be amended without being resubmitted to a grand jury.  Under Article VII (Amended), section 5(6), “The district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form.”  The Court held that Wimber was not dispositive here because, in Wimber, the amendment changed facts about the crime that the grand jury already found.  Here, the amendment added the statutory basis for joinder.  Affirmed, based on different reasoning.