STATE v. PENLEY, 137 Or. App. 352 (1995)

904 P.2d 199

STATE OF OREGON, Respondent, v. ALEXANDER C. PENLEY, Appellant.

DA1003144; CA A85420Oregon Court of Appeals.Submitted on record and briefs August 7, 1995.
Reversed and remanded for new trial October 25, 1995.

Appeal from District Court, Multnomah County, David Gernant, Judge.

Sally L. Avera, Public Defender, and Eric M. Cumfer, Deputy Public Defender, filed the briefs for appellant.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Robert B. Rocklin, Assistant Attorney General, filed the brief for respondent.

Before Richardson, Chief Judge, and Riggs and Landau, Judges.

Page 353

RICHARDSON, C.J.

Reversed and remanded for new trial.

Page 354

RICHARDSON, C.J.

Defendant appeals his conviction in the district court for resisting arrest, ORS 162.315, a class A misdemeanor. In his opening brief, he contended that the trial court erred by excluding some evidence that he had offered. He filed a supplemental brief in which he argues that the court did not have jurisdiction over class A misdemeanors and asks for dismissal. State v. Rudder, 133 Or. App. 174, 889 P.2d 1367
(1995).

The state concedes that the court erred by excluding the evidence and that defendant is entitled to a new trial State v. Hubbard, 297 Or. 789, 688 P.2d 1311 (1984). It contends that we need not address the jurisdictional issue because, even if the trial court did not have jurisdiction, all defendant would be entitled to would be a new trial. Because he is entitled to a new trial on the evidentiary error, the state argues that the question of jurisdiction is essentially moot.

Even if the state is correct that a defendant can be retried if it is determined that the court lacked jurisdiction in the first trial, we address the jurisdictional issue that is raised. If the court did not have jurisdiction, the proceeding is a nullity for that reason and the charge should have been dismissed. If properly dismissed, it cannot be revived simply by a remand. If the state wishes to retry a case dismissed for lack of jurisdiction, it must properly initiate the prosecution in a court with jurisdiction. We express no opinion as to whether a case may be lawfully retried under those circumstances.

We hold, however, that the district court had jurisdiction over the charge for which defendant was convicted. The complaint alleged that defendant committed the crime on July 17, 1993, which was before the amendment of ORS 161.635 became effective. We held in State v. Flowers, 136 Or. App. 555, 902 P.2d 624 (1995), that the court had jurisdiction of class A misdemeanors committed before the amendment became effective.

Reversed and remanded for new trial.

Page 355