State v. Thomas

• Decision Date: 16 January 1978
• Citation: 32 Or.App. 85,573 P.2d 1259
• Parties: STATE of Oregon, Appellant, v. David Wayne THOMAS, Respondent.
• Court: Oregon Court of Appeals

Page 1259

573 P.2d 1259

32 Or.App. 85

STATE of Oregon, Appellant, v. David Wayne THOMAS, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Dec. 16, 1977.

Decided Jan. 16, 1978.

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

John W. Stewart, Salem, argued the cause and filed the brief for respondent.

Before TANZER, P. J., and JOHNSON and ROBERTS, JJ.

JOHNSON, Judge.

The state seeks to appeal from a trial court order sustaining defendant's demurrer to a uniform traffic citation and complaint. An order which merely sustains a demurrer and does not dismiss or set aside the complaint is not an appealable order under ORS 157.081 and ORS 138.060, which provides in part:

"The state may take an appeal from the circuit court to the Court of Appeals from:

"(1) An order made prior to trial dismissing or setting aside the accusatory instrument;

" * * *." ¹

Appeal dismissed.

1 This was also the rule under former ORS 138.060. See State v. Cloran, 233 Or. 400, 374 P.2d 748, 377 P.2d 911, 378 P.2d 961 (1963); State of Oregon v. Davis, 207 Or. 525, 296 P.2d 240 (1956); State of Oregon v. Berry and Walker, 204 Or. 69, 267 P.2d 993, 267 P.2d 995, 282 P.2d 344, 282 P.2d 347 (1955); State of Oregon v. Brown, 5 Or. 119 (1873).