rationale of Brown upheld, but facts of Brown, involving plea to original charge, should have fallen within exception to same transaction rule
How later courts described this case
- rationale of Brown upheld, but facts of Brown, involving plea to original charge, should have fallen within exception to same transaction rule
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State v. Knowles, 289 Or. 813 (1980)
Or Laws 1973, ch 836, §§ 1-359; State v. Hammang, 271 Or 749, 760, 534 P2d 501 (1975), overruled on other grounds by State v. Knowles, 289 Or 813, 822, 618 P2d 1245 (1980).
The opinion
McALLISTER, J.,
dissenting.
If the theft of the guns and the murder of Syverson arose out of the same criminal episode and if both offenses “were reasonably known” to the prosecutor and if both offenses could have been tried in the same court, then the prosecution of defendant for the theft of the guns was a bar to a subsequent prosecution for Syverson’s murder.
If ORS 131.505 and 131.515 were applicable, they obviously would dictate the above result.
ORS 131.515(2) provides as follows:
“No person shall be separately prosecuted for *759 two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”
OES 131.505(4) defines a criminal episode as follows :
“ ‘Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.”
OES 131.505(5) defines the phrase “prosecuted for an offense” as follows:
“A person is ‘prosecuted for an offense’ when he is charged therewith by an accusatory instrument filed in any court of this state or in any court of any political subdivision of this state, and when the action either:
“(a) Terminates in a conviction upon a plea of guilty; * * (Emphasis supplied.)
The above provisions are based in substantial part on the American Law Institute’s Model Penal Code (Proposed Official Draft approved May 4, 1962). Section 1.07(2) of the Code provides that a defendant shall not be subject to separate trials for multiple offenses arising from the same criminal episode if such offenses are known to the prosecutor at the commencement of the first trial and are within the jurisdiction of the same court. Section 1.09 bars a second prosecution for a different offense when the former prosecution resulted in a conviction and the second prosecution is for an offense which should have been tried on the first prosecution under section 1.07. Conviction, as employed in section 1.09 includes a plea of guilty accepted by the court in the former prosecution (section 1.08(3)).
*760 If the statutes quoted above from the 1973 Criminal Procedure Code were applicable, it is clear that defendant’s conviction on a plea of gidlty for the theft of the guns would bar a later prosecution of another crime arising out of the same criminal episode if the prosecutor “reasonably” knew of both offenses when the prosecution of the theft charge was commenced. Certainly both the theft and the murder could have been tried in the same court.
It appears that the statutes quoted above do not directly affect this case because they were enacted in 1973 as a part of a new Criminal Procedure Code which, by its terms, took effect on January 1, 1974. Both the prosecution for theft and the separate prosecution for murder were commenced in 1973—the latter charge on December 21, 1973. It is clear, however, that, as applied to this case, the quoted statutes made no significant change in the applicable law.
It is well settled that a former conviction based upon a plea of guilty is sufficient to sustain a plea of former jeopardy in a subsequent prosecution for the same offense. State v. Stover, 271 Or 132 , 531 P2d 258, 263 (Jan. 29, 1975); State v. Smith, 101 Or 127, 150 , 199 P 194 , 16 ALR 1220 (1921). See, also, Ray v. State, 231 S2d 813, 814-815 (Fla, 1970); People v. Thompson, 10 CA3d 129, 88 Cal Rptr 753, 758 (1970); Reyes v. Kelly, 224 S2d 303, 306 (Fla, 1969), cert. den. 397 US 958 ; Hawkins v. State, 30 Wis 2d 264 , 140 NW2d 226, 228 (1966); People v. Sturdy, 235 CA2d 306, 45 Cal Rptr 203, 209 (1965); Markiewicz v. Black, 138 Colo 128, 330 P2d 539, 541 , 75 ALR2d 678 (1958); People v. Krupa, 64 CA2d 592, 149 P2d 416, 421 (1944); Boswell v. State, 111 Ind 47, 11 NE 788, 790 (1887); People v. Goldstein, 32 Cal 432, 433 (1867); Annotation, Double Jeopardy—Plea of Guilty, 75 ALR2d 683, 686; 21 Am Jur 2d 231, Criminal Law § 165; 22 CJS 654, Criminal Law § 248.
*761 In State v. Brown, 262 Or 442, 458 , 497 P2d 1191 (1972), we held that:
* * [A] second prosecution is for the ‘same offense’ and is prohibited if (1) the charges arise out of the same act or transaction, and (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution.” (Emphasis supplied.)
In State v. Fitzgerald, 267 Or 266 , 516 P2d 1280 (1973), a case involving our permissive joinder statute (ORS 132.560(2)), we held that “two charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge.” (Emphasis supplied.) 267 Or at 273 .
In State v. Boyd, 271 Or 558 , 533 P2d 795, 799 (1975), we determined that the test of Fitzgerald , was the equivalent of the statutory definition of the “same criminal episode” in ORS 131.505(4). We said:
“* * * We are unable to conceive of ‘continuous and uninterrupted conduct * * * so joined in time, place and circumstance’ that such conduct is directed to the accomplishment of a single criminal objective, which at the same time would not fulfill the test of Fitzgerald and be ‘so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge.’ ( 267 Or at 273 .) We hold, therefore, that ‘same criminal episode’ in ORS 131.515(2) is svnonvmous with same transaction in ORS 132.560(2).’’
It thus appears that the applicable law in effect prior to January 1, 1974 did not significantly differ from the law as enacted by the statutes quoted above. Since a person is “prosecuted for an offense” *762 if his conviction is “upon a plea of guilty” defendant’s plea of former jeopardy is a bar to another prosecution for the same crime or another crime based on the same criminal episode and the other necessary conditions exist.
In my view the court should determine whether the theft of the guns and the murder of Syverson arose out of the same criminal episode and whether both offenses were “reasonably known” to the prosecutor when the first prosecution was commenced. If both questions are answered in the affirmative then the defendant’s plea of former jeopardy should have been allowed.
I dissent.