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State v. Tidwell

Court of Appeals of Oregon

October 30, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
NICHOLAS BOYD TIDWELL, aka Nicolas Boyd Tidwell, Defendant-Appellant.

Submitted on January 17, 2013.

Washington County Circuit Court D081215M, D093854T, D100678T Steven L. Price, Judge.

Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Mary H. Williams, Deputy Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.

ORTEGA, P. J.

In this consolidated criminal appeal, defendant challenges the trial court's denial of his motion to sever two previously consolidated cases for trial. Defendant was separately charged with two counts of driving under the influence of intoxicants (DUII), ORS 813.010, based on incidents that occurred seven months apart. After the court granted the state's motion to consolidate the two cases, defendant moved to sever for separate trials. The trial court denied that motion, and a jury convicted defendant on both counts. Defendant seeks reversal of his DUII convictions and a remand for separate trials of the DUII counts. We affirm.[1]

ORS 132.560 controls the resolution of this appeal. In pertinent part, it provides:

"(1) A charging instrument must charge but one offense, and in one form only, except that:
"* * * * *
"(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:
"(A) Of the same or similar character;
"* * * * *
"(2) If two or more charging instruments are found in circumstances described in subsection (1)(b) of this section, the court may ...

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