The opinion
Pfeifer, J.,
dissenting.
{¶ 42} Martello failed to report to his parole officer. That conduct ought not to be excused; nor should it be punished twice. To punish Martello twice violates the Double Jeopardy Clause, Section 10, Article I of the Ohio Constitution and the Double Jeopardy Clause of the' Fifth Amendment to the United States Constitution. As explained in State v. Gustafson (1996), 76 Ohio St.3d 425, 432 , 668 N.E.2d 435 , “[T]he Double Jeopardy Clause of each Constitution prohibits (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.”
{¶ 43} Martello served a 91-day prison term for violating the terms of his postrelease control because he failed to report to his parole officer. Today, a majority of this court has determined that Martello can also be prosecuted for escape, in violation of R.C. 2921.34(A)(1), because he failed to report to his parole officer. Is that not two punishments?
{¶ 44} The majority notes that federal courts in similar circumstances have found that the Double Jeopardy Clause of the United States Constitution is not violated. I am not convinced. I believe that the Double Jeopardy Clause of the Ohio Constitution prohibits a person from being prosecuted for the same action for which that person has already served prison time. Whether the United States Constitution provides less protection is immaterial. I dissent.
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, and Angela M. Scott, Assistant Prosecuting Attorney, for appellant.
David H. Bodiker, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellee.
Betty D. Montgomery, Attorney General, David M. Gormley, State Solicitor, Darrell M. Pierre Jr. and Robert L. Strayer, Assistant Attorneys General, urging reversal for amicus curiae Attorney General of Ohio.