State v. Perks

The state appeals a pretrial order that granted defendant’s motion to dismiss the pending prosecution for assault in the fourth degree on former jeopardy grounds. ORS 131.515. We reverse.

Defendant was charged by indictment with assault in the second degree.1 At trial, the jury was properly instructed on the lesser included offense of assault in the fourth degree, a misdemeanor.2 The jury acquitted defendant on the indicted charge but did not reach a verdict on the lesser included offense. The state now seeks to retry defendant on that charge.

Defendant argues that the state cannot retry him…