FILED: July 11, 2007

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CINDY ANN GRUHLKE,
aka Cindy Hoep,

Defendant-Appellant.

Klamath County Circuit Court
0200995CR; A127797

Cameron F. Wogan, Judge.

Submitted on record and briefs June 1, 2007.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Bronson D. James, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Armstrong and Rosenblum, Judges.

PER CURIAM

Reversed and remanded.

PER CURIAM

Defendant appeals her conviction, upon a conditional guilty plea, for driving under the influence of intoxicants, ORS 813.010. She argues that the trial court erred in denying her demurrer to the indictment. For the reasons that follow, we reverse and remand.

The indictment, which issued on November 1, 2004, alleged the crime to have occurred on or about April 20, 2002. Although the indictment had the word "amended" handwritten on it, it did not allege any facts that would demonstrate that the state commenced the prosecution within the two-year statute of limitations applicable here. ORS 131.125(6)(b). Defendant argued in the trial court, and reasserts on appeal, that the indictment does not satisfy the requirements of ORS 132.540(1)(c), in that it does not provide information that the "crime was committed at some time prior to the finding of the indictment and within the time limited by law for the commencement of an action therefor." The state concedes that, under the reasoning of State v. Bovee, 76 Or App 572, 710 P2d 786 (1985), rev den, 300 Or 605 (1986), the trial court erred in failing to dismiss the indictment under these circumstances. We agree. See id. at 576 ("The facts which are relied on to toll the Statute of Limitations must be set forth in the indictment to survive a demurrer for failure to comply with ORS 132.540(1)(c).").

Reversed and remanded.


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