State v. Savastano
260 P.3d 529
Or. Ct. App.2011Background
- Defendant embezzled hundreds of thousands from her employer during 2005–2006 across 16 months.
- District Attorney charged 10 counts of first-degree aggravated theft (ORS 164.057) and six counts of first-degree theft (ORS 164.055), each count tied to a named month.
- Prosecution aggregated multiple thefts by month to create organized counts for the jury.
- Defendant moved to dismiss, arguing the charging decision lacked a coherent, consistently applied policy in violation of Article I, section 20, of the Oregon Constitution.
- Prosecutor conceded there was no department-wide policy; court denied the motion, defendant pled guilty conditionally reserving an appeal, which challenges the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether month-by-month aggregation violated Article I, section 20. | State contends no coherent policy required; discretion valid. | Savastano argues lack of consistent standards shows ad hoc charging. | Yes, aggregation lacked a coherent, systematic policy. |
| Whether the absence of a consistent policy invalidate the indictment. | Policy uncertainty undermines charging method. | Policy not consistently applied; no lawful standard. | Indictment must be dismissed or recharged with consistent standards. |
| Whether the court should compel six-month or other aggregated counts on remand. | N/A | N/A | Court remands for consistent, permissible criteria. |
Key Cases Cited
- State v. Buchholz, 309 Or. 442, 788 P.2d 998 (1990) (ad hoc distribution violates Article I, §20; require coherent criteria)
- State v. Freeland, 295 Or. 367, 667 P.2d 509 (1983) (unlawful discrimination through lack of standards; need consistent standards)
- State v. McDonnell, 313 Or. 478, 837 P.2d 941 (1992) (prosecutorial charging decisions subject to constitutional constraints)
- State v. Farrar, 309 Or. 132, 786 P.2d 161 (1990) (decision whether to prosecute for aggravated murder or murder includes charging discretion)
- State v. Reynolds, 289 Or. 533, 614 P.2d 1158 (1980) (charges for murder or felony murder; prosecutorial charging discretion)
- City of Salem v. Bruner, 299 Or. 262, 702 P.2d 70 (1985) (due process limits on distribution of burdens/benefits; standardless discretion)