State v. Dallavis, 432 P.3d 282

Defendant was indicted on four counts: furnishing alcohol to a minor (Count 1), first‑degree rape (Count 2), second‑degree sexual abuse (Count 3), and failure to report as a sex offender (Count 4).
Defendant demurred to the indictment arguing the indictment failed to plead the statutory basis for joinder (ORS 132.560); the trial court agreed Counts 1–3 arose from the same act/transaction but allowed the demurrer as to Count 4 and permitted the State to refile.
The State reindicted Count 4 separately; defendant prepared a judgment dismissing Count 4, did not object to proceeding on Counts 1–3, and was tried and convicted on Counts 1–3.
At sentencing the court imposed 120 months on Count 2 (first‑degree rape) under the Guidelines, designated 100 months as the Measure 11 determinate term under ORS 137.700, and initially ruled the defendant ineligible for any sentence reduction during the entire 120 months.
On appeal the defendant raised (1) that the court erred in permitting trial on an indictment after allowing a demurrer (i.e., that the whole indictment should have been dismissed), and (2) that the court erred by denying eligibility for sentence‑modification (earned time) for the 20 months above the 100‑month Measure 11 minimum without making “substantial and compelling” findings.

Issue	State's Argument	Defendant's Argument	Held
Whether trial court erred by permitting trial on indictment after demurrer allowed as to Count 4 (i.e., whether entire indictment had to be dismissed)	Defendant failed to preserve the objection and did not object to being tried on remaining counts; no error reviewable	Demurrer required dismissal of entire indictment under ORS 135.660/135.670(1)	Not preserved; invited error by defendant; claim rejected
Whether ORS 137.700 precludes earned‑time eligibility for any portion of a sentence that exceeds the Measure 11 mandatory minimum	ORS 137.700 bars reductions for the sentence such that no part of a longer sentence is eligible for earned time	ORS 137.700 only bars reductions to the mandatory minimum (100 months); court must make substantial and compelling findings to deny eligibility for months above the minimum	ORS 137.700 bars reductions only to the mandatory minimum; remand for resentencing so court can decide eligibility for the 20‑month excess with ORS 137.750 findings

PGE v. Bureau of Labor & Indus., 317 Or. 606 (1993) (statutory interpretation methodology)
State v. Gaines, 346 Or. 160 (2009) (refinement of PGE methodology)
State v. Wyatt, 331 Or. 335 (2000) (preservation rule explained)
State v. Amaya, 336 Or. 616 (2004) (purpose of preservation rule)
State v. Walker, 350 Or. 540 (2011) (short‑hand preservation in criminal cases)
State v. Langdon, 330 Or. 72 (2000) (Measure 11 mandatory minima cannot be reduced)
State v. Berger, 284 Or. App. 156 (2017) (earned time reductions treated as sentence modification under ORS 137.750)