Opinion · Court of Appeals of Oregon
State v. Gonzales
56 Or. App. 17
- Type
- Opinion
- Court
- Court of Appeals of Oregon
- Jurisdiction
- Oregon
- Date
- 1982-02-22
- Topic
- general
VAN HOOMISSEN, J., concurring. ORS 132.430(2) provides: “When an indictment indorsed ‘not a true bill’ has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders.” See State v. Turner, 104 Or 334, 207 P 602 (1922). The issue here is whether the prosecutor may charge a person in district court by misdemeanor complaint after the grand jury has returned a “not true bill” on a felony charge for the same conduct and based on the same evidence. The majority concludes he may.
Citator
UpLaw has not yet analyzed State v. Gonzales. The absence of a flag is not a finding that it is good law.
concurring.
ORS 132.430(2) provides:
“When an indictment indorsed ‘not a true bill’ has been filed with the clerk of the court, the effect thereof is to dismiss the charge; and the same cannot be again submitted to or inquired of by the grand jury unless the court so orders.”
See State v. Turner, 104 Or 334, 207 P 602 (1922).
The issue here is whether the prosecutor may charge a person in district court by misdemeanor complaint after the grand jury has returned a “not true bill” on a felony charge for the same conduct and based on the same evidence. The majority concludes he may. While I am not certain that the majority is wrong, I am sufficiently concerned about this practice that I feel compelled to note my concern and its basis.
First, there may be merit in defendant’s equal protection argument. The majority finds, that “defendant is treated no differently than some other persons accused of a misdemeanor.” But he is treated differently than other persons whose cases have been considered by the grand jury. Second, arguably, the action of the prosecutor here violates the spirit of ORS 132.430(2).1 Cf. The State v. Boswell, 104
I believe this practice is one deserving of legislative review and direction.
The “spirit” of the statute is that the state should not harass its citizens. Once a grand jury has considered a case and has determined that no charge should