These include United States v. LoRusso, 695 F.2d 45 (2nd Cir. 1982), cert.denied sub nom. Errante v. U.S., 460 U.S. 1070 (1983); Byrne, supra;United States v. Baggett, 251 F.3d 1087 (6th Cir. 2001), cert. denied, 534 U.S. 1167 (2002); and State v. Sperry, 945 P.2d 546 (Or.App. 1997), review denied, 328 Or. 275, 977 P.2d 1173 (1999). According to the Sixth Circuit Court of Appeals in Baggett, supra, "Byrne and LoRusso stand for the proposition that an oral grant of a [motion for judgment of acquittal] outside the jury's presence does not terminate jeopardy, inasmuch as the court is free to change its mind prior to the entry of judgment."
See id. (disregarding scrivener’s error to determine which count was intended to have been the basis of conviction). The state contends that we should reach a different conclusion, following State v. Sperry , 149 Or. App. 690, 945 P.2d 546 (1997). In that case, we held that
Id., at 674 ("[T]here was no announcement of the court's decision to the jury, and the trial did not resume until" after the court had denied the defendant's motion). See also United States v. Baggett, 251 F. 3d 1087, 1095 (CA6 2001) (" Byrne and LoRusso stand for the proposition that an oral grant of a Rule 29 motion outside of the jury's presence does not terminate jeopardy, inasmuch as a court is free to change its mind prior to the entry of judgment"); State v. Iovino, 524 A. 2d 556, 559 (R.I. 1987) (distinguishing United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), on the grounds that in the case before it, "the jury remained impaneled to adjudicate lesser included charges, and that defendant was not faced with any threat of reprosecution beyond the jury already assembled to hear his case"); State v. Sperry, 149 Ore. App. 690, 696, 945 P. 2d 546, 550 (1997) ("[U]nder the circumstances presented here, the trial court could reconsider [its oral grant of a motion for a judgment of acquittal] and withdraw its ruling without violating" the Double Jeopardy Clause). Because respondent did not meet the statutory requirements for habeas relief, the judgment of the Court of Appeals is reversed.
e to change its mind prior to the entry of judgment."); United States v. Byrne , 203 F.3d 671, 675 (9th Cir. 2000) (holding that there was no double jeopardy violation where the defense moved for a judgment of acquittal and the district court initially granted it but subsequently denied it after reviewing the government's motion for reconsideration and accompanying testimony transcript; reasoning that it was "clear ... that the district court's initial ruling on the defendant's motion for acquittal was not final," as the district judge made clear "in the course of the same colloquy in which she announced the decision"); United States v. LoRusso , 695 F.2d 45, 54 (2d Cir. 1982) (holding that there was no double jeopardy issue where the trial court orally granted the defense's MJOA on Count 2 for lack of proof of intent to distribute but modified its ruling the next day to allow the prosecution to proceed on a lesser-included offense, thus reducing the charge rather than dismissing it); State v. Sperry , 149 Or.App. 690, 945 P.2d 546, 550 (1997) (holding that there was no double jeopardy violation where the trial court initially said that it would grant the defense's MJOA on one of the counts but reversed its decision the next day). This case is starkly different from Martin Linen Supply Co. , where double jeopardy protection was triggered because the district court had entered a judgment of acquittal after discharging a deadlocked jury.
Defendant argues that when the trial court first granted his motion for judgment of acquittal, that was a bar to further prosecution for the same offense and, accordingly, the trial court erred in reversing its oral order. We addressed that issue in State v. Sperry, 149 Or App 690, 945 P2d 546 (1997), rev den, 328 Or 275 (1999), which is analogous to this case. In Sperry, the defendant argued that, once the court granted his motion for a judgment of acquittal, "the trial court could not subsequently reverse itself and reinstate the count."
However, the trial court did not issue any written order until after the January hearing. See State v. Sperry, 149 Or. App. 690, 697, 945 P.2d 546 (1997) (noting the "oft-reiterated principle that a trial court's oral ruling is not binding until reduced to writing and, unless [the writing is] executed in open court, is not effective until filed with the clerk"). We emphasize that defendant proffered the putative answer within the one-year period for moving to set aside judgments.