State v. Levitt

Summary

The Oregon Court of Appeals held that when a trial court allows a demurrer challenging the indictment, the court must enter a final judgment dismissing the indictment rather than permit amendment by interlineation. The court reversed and remanded the judgment of conviction so the defendant could decide whether to withdraw his conditional guilty plea.

Holdings

1. When a trial court allows a demurrer that affects the entire indictment, ORS 135.670 requires the court to enter a final judgment dismissing the indictment; the state may proceed only by resubmitting or refiling a new accusatory instrument if the court permits it.
2. The state may not cure insufficient joinder pleading by amending an existing indictment after the trial court has allowed a demurrer affecting the entire indictment.
3. When a defendant finally prevails on appeal after entering a conditional guilty plea, the judgment of conviction must be reversed and remanded so that the defendant may decide whether to withdraw the plea.

Questions Presented

1. Whether, after a trial court allows a demurrer to an indictment affecting the entire indictment, the court may permit the state to amend the existing indictment by interlineation rather than enter a final judgment dismissing it.
2. Whether the distinction between defects of form and defects of substance permits amendment of an indictment after the demurrer has been allowed.
3. What relief is appropriate after reversal when the convictions resulted from a conditional guilty plea.

Disposition

reversed_and_remanded