"[W]e are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires"
How later courts described this case
- "[W]e are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires"
- synthesizing approach from Evans and earlier post-conviction cases
Written by the judges who cited it.
The opinion
O’CONNELL, C.J.,
specially concurring.
I concur in the principal opinion but T write separately to call attention to a problem in the present case which deserves consideration by the legislature:
*391 The state found it necessary to charge defendant with the crime of larceny because the original proceeding in which defendant was charged with burglary culminated in a judgment of acquittal and there were no further steps open to the state to keep the burglary charge alive so that defendant’s guilt or innocence on that charge could be determined. The original proceeding ended as it did simply because the district attorney, in drafting the indictment, decided that a motel did not come within the legal classification of a dwelling. The trial court found this to be error and in effect found a variance between the proof and the indictment. The state would have found itself faced with the same problem if the indictment had charged burglary in a dwelling and the trial court had erroneously decided that a motel was not a dwelling. In such a case the state would have no avenue by which to correct the error because the state would not, under •existing statutes, be entitled to appeal from the trial •court’s ruling.
These procedural obstacles can be removed by expanding the state’s right to appeal and by adopting more liberal rules with respect to the amendment of indictments to conform to the proof. There should be legislation to accomplish both of these objectives. (1) If this step is not taken, we perpetuate in Oregon rules •of criminal procedure under which an accused is permitted to go free because of a legal error in the course *392 of the proceedings even though his guilt or innocence has not been passed upon by the jury. (2)
The suggestion for liberalizing the rules for amending indictments would not require legislation. However, if this court undertook the task of modernizing the rules of amending indictments, it would be necessary for us to repudiate some of our previous decisions, for example, State v. Russell, 231 Or 317 , 372 F2d 770 (1962) and State v. Moyer, 76 Or 396 , 149 P 84 (1915).
For a more specific treatment of the problem, see More-land, Modern Criminal Procedure, ch 19 (1959); Orfield, Criminal Procedure from Arrest to Appeal, pp. 233-247 (1947); Comment, Criminal Law—Double Jeopardy—Appeals by Prosecution, 9 U Det L J 93 (1946); Miller, Appeals by the State in Criminal Cases, 36 Yale L J 486 (1927); Steffen, Concerning Double Jeopardy and the New Rules, 7 Fed B J 86 (1945); Statutory Implementation of Double Jeopardy Clauses: New Life for a Constitutional Guarantee, 65 Yale L J 339 (1955); Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L J 513 (1949); Hall, Objectives of Federal Criminal Procedural Revision, 51 Yale L J 723 (1942); Note, Criminal Law—Amendment of Indictment— Variance, 37 Yale L J 383 (1928).