State v. Stahley

507 P.2d 1159 (1973)

STATE of Oregon, Appellant, v. Wayne Allan STAHLEY, Respondent.

Court of Appeals of Oregon.

Argued and Submitted March 1, 1973.

Decided March 26, 1973.

*1160 Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Solicitor Gen., Salem.

Patrick D. Gilroy, Oregon City, argued the cause for respondent. With him on the brief was William E. Schumaker, Oregon City.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

FOLEY, Judge.

State v. Stahley was previously before this court, 93 Adv.Sh. 1616, 7 Or. App. 464, 492 P.2d 295 (1971), on appeal by the state from an order suppressing evidence. The trial court had ruled that a district court suppression order was res judicata and binding on the circuit court. We reversed and remanded to give the circuit court an opportunity to make an independent determination as to the merits of the motion to suppress. Thereafter, the circuit court in that case allowed the motion to suppress and dismissed the indictment. The state did not appeal as authorized by ORS 138.060(4)[1] but, instead, defendant was reindicted for the possession of the same marihuana in violation of former ORS 474.020. On the state's pretrial motion for a ruling on the admissibility of evidence under the new indictment, the trial court again ordered the evidence suppressed on grounds which included res judicata. The state appeals pursuant to ORS 138.060 (4).[1]

Defendant urges that the trial court's ruling suppressing the evidence under the first indictment from which the state did not appeal is res judicata. We agree. The doctrine of res judicata is applicable in criminal cases. ORS 43.160; 136.510; State v. Dewey, 206 Or. 496, 292 P.2d 799 (1956).

The test, set out in Sibold v. Sibold, 217 Or. 27, 32-33, 340 P.2d 974, 977 (1959), is as follows:

"* * * Was opportunity given for consideration on the merits and was the matter so considered? Was there an appealable ruling? Was the issue disposed of on its merits? If so, the issue is res judicata. * * *"

The answer to each of these questions in this case is affirmative, and the issue thus is res judicata.

Affirmed.

NOTES

[1] ORS 138.060(4) reads:

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

"* * *

"(4) An order made prior to trial suppressing evidence."