State v. Brumwell

Under ORS 138.045, “dismissing or setting aside” is when a court issues an order ruling an accusatory instrument fails to state facts that constitute an offense, when a death penalty case is reopened, the new penalty phase hearing is like a new trial.

Defendant’s sentencing was reopened after a successful post-conviction case. Defendant was previously convicted of aggravated murder, receiving the death penalty. Because the definition of aggravated murder has changed since Defendant’s offense, Defendant argued the death penalty should be precluded. Defendant submitted a motion in trial court stating as such which was granted. The State appealed under ORS 138.045(1)(i) because the order is one made prior to trial which dismisses or sets aside a count in the indictment; alternatively, because it is an order made after a guilty finding which demises or sets aside a count in the indictment. Under ORS 138.045, “dismissing or setting aside” is when a court issues an order ruling an accusatory instrument fails to state facts that constitute an offense, when a death penalty case is reopened, the new penalty phase hearing is like a new trial.  The trial court set aside both counts in this case because it reduced the crimes charged from aggravated murder to first-degree murder. Because the court’s order came before a new penalty-phase jury was empaneled, the order occurred prior to trial. The state’s motion to determine jurisdiction was GRANTED.