State v. Sheppard, 17-770

• Citation: 35 Or.App. 69,581 P.2d 549
• Decision Date: 05 July 1978
• Docket Number: No. 17-770,17-770
• Parties: STATE of Oregon, Respondent, v. Martinez Leroy SHEPPARD, Appellant. ; CA 9221.
• Court: Court of Appeals of Oregon

Page 549

581 P.2d 549

35 Or.App. 69

STATE of Oregon, Respondent, v. Martinez Leroy SHEPPARD, Appellant.

No. 17-770; CA 9221.

Court of Appeals of Oregon.

Argued and Submitted Jan. 17, 1978.

Decided July 5, 1978.

Steven L. Verhulst, Hillsboro, argued the cause for appellant. With him on the brief was Garland, Karpstein & Boyer, Hillsboro.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Before SCHWAB, C. J., and LEE, RICHARDSON, and JOSEPH, JJ.

LEE, Judge.

Defendant appeals his conviction subsequent to the trial court's denial of his motion to dismiss for lack of subject matter jurisdiction over an information charging arson under ORS 164.325. ¹ Defendant contends that under the provisions of Amended Art. VII, § 5(5), Oregon Constitution, the prosecutor must proceed to trial on the same charge on which defendant was bound over to the circuit court by the magistrate. We do not reach this issue, however, because of our determination that defendant's failure to raise a timely objection constituted a waiver.

On July 19, 1977, defendant, who was then, and at all times thereafter represented by counsel, was charged in the district court by a district attorney's information with the crime of arson in the first degree by an allegation that defendant did, on or about July 17, 1977,

" * * * unlawfully and intentionally damage protected property, to-wit: the Washington County Jail, situated at Washington County, Department of Public Safety, the property of Washington County, by starting a fire * * *."

The information showed that defendant was charged under ORS 164.325. No reference was made to any subsection of ORS 164.325 but the language of the information comports with that of ORS 164.325(1)(A ). A preliminary hearing was held; a finding of probable cause was made; and on July 29, 1977, the defendant was bound over to the circuit court.

By a second district attorney's information filed directly in circuit court on August 1, 1977, defendant was charged with arson in the first degree under ORS 164.325 which alleged that defendant did, on or about July 17, 1977

" * * * intentionally damage certain property, to-wit: a pair of shoes, by starting a fire, whereby the said defendant did recklessly place another person, to-wit: Aaron Ashbaugh and Richard W. Hill, Jr., in danger of physical injury and did recklessly place protected property of another, to-wit: the Washington County Jail, in danger of damage * * *."

Defendant was arraigned on August 1, 1977, and on August 8, 1977, pled not guilty to that charge. Trial was held on August 25, 1977.

After the state had rested, defendant moved to dismiss on the ground that the court had no jurisdiction over the subject matter of the case because there had been no preliminary hearing on the second information. ² The court denied the motion; defendant offered no evidence and the jury returned a verdict of guilty of the lesser included offense of reckless burning. ORS 164.335. Defendant assigns as error the trial court's failure to dismiss the charging instrument. He contends that there was a failure to comply with Amended Art. VII, § 5(5), of the Oregon Constitution.

Amended Art. VII, § 5(5), provides:

"The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that A crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives a preliminary hearing." (Emphasis supplied.)

The magistrate's determination of "probable cause" means that there is a substantial objective basis for believing that more likely than not a crime has been committed and that the defendant committed it. If it appears from the preliminary hearing that probable cause exists, the magistrate is required to forward to the court, in which the defendant would be triable, the information holding the defendant for further proceedings. See ORS 135.185 ³ and ORS 135.225. ⁴

In the instant case, the charge contained in the information was cast in the language of ORS 164.325(1)(A ) whereas defendant was arraigned and pled not guilty to a charge which was cast in the language of ORS 164.325(1)(B ). Even if such a procedure constituted error, defendant did not object to the absence of a preliminary hearing on the second information at the time of his arraignment on August 1, nor on August 8, when he entered his plea, nor at any time prior to trial. We hold that by entering a...