State v. Woodson
Decision Date | 14 October 1992 |
Citation | 833 P.2d 1339,113 Or.App. 688 |
Parties | STATE of Oregon, Respondent, v. Don Ronnall WOODSON, Appellant. C89-05-32774; CA A64036 (Control), CA A62899. |
Court | Oregon Court of Appeals |
Eric R. Johansen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Janet A. Klapstein, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before RICHARDSON, P.J., JOSEPH, C.J., and DEITS, J.
Defendant appeals his conviction for attempted rape in the first degree. ORS 163.375; ORS 161.405. He contends that the court erred by amending the indictment. We reverse.
In a two-count indictment, defendant was charged with rape in the first degree (Count 1) and assault in the fourth degree (Count 2). Just as the trial was starting, but before voir dire of the jury panel, the prosecutor told the court that the state had intended to charge defendant with attempted rape in the first degree but, because of a scrivener's error, the grand jury indictment charged the completed crime. The court, over defendant's objection, amended the indictment by interlineation so that it charged attempted rape in the first degree. Defendant was convicted of that charge as well as of assault. 1
Article VII (Amended), section 5, subsection (6), of the Oregon Constitution provides:
That allows the prosecutor to file an amended indictment without resubmitting the matter to the grand jury only if the amendment relates to form, not substance. State v. Moyer, 76 Or. 396, 149 P. 84 (1915); State v. Wilcox, 110 Or.App. 490, 823 P.2d 1009 (1992); State v. Sohn, 107 Or.App. 147, 810 P.2d 1337 (1991); State v. Martinez, 73 Or.App. 302, 698 P.2d 510 (1985); State v. Green, 44 Or.App. 253, 605 P.2d 746 (1980).
In Green, we said:
44 Or.App. at 257, 605 P.2d 746.
The amendment changed the crime charged from rape in the first degree to attempted rape. The two crimes involve different elements, defenses and punishments. The indictment did not allege the crime that the state intended to charge. See State v. Martinez, supra. The amendment cured a defect of substance, not form.
The state argues that defendant is not prejudiced, because the amendment alleged a lesser crime and one that could have been submitted to the jury as a lesser included offense. The Oregon Constitution provides, with...
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State v. Woodson
...indictment. The Court of Appeals concluded that the amendment altered the substance of the indictment and reversed. State v. Woodson, 113 Or.App. 688, 833 P.2d 1339 (1992). For the reasons stated below, we reverse the Court of Appeals' decision and affirm the trial court's The first formal ......
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State v. Woodson
...454 843 P.2d 454 314 Or. 727 State v. Woodson (Donald Ronnall) NOS. A64036, S39583 Supreme Court of Oregon Nov 24, 1992 113 Or.App. 688, 833 P.2d 1339 ...