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STATE v. THOMAS

Oregon Court of Appeals.

Jul 25, 1978

Judgment

Subsequent
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CaseIQ

Appeal dismissed.

JOHNSON, J.

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;

"* * * * *."

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).

Appeal dismissed.